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Clean Up Environmental Law?

Federal lawmakers propose changes to NEPA, which governs actions in C&O Canal Park.

When the C&O Canal National Historical Park proposed a project to renovate the Great Falls Tavern and widen the park access road in 2004, the first thing officials had to do was draft an environmental assessment.

BUILDING A boardwalk above the rocky towpath at Widewater? Environmental assessment.

Building the controversial Inter-County Connector highway through Montgomery County — another federally funded project — requires an environmental assessment and a much more extensive environmental impact statement.

The lengthy documents are not just a bureaucratic hurdle. They are part of a detailed public input and study process required of federal agencies before any action, such as construction, with potential environmental consequences.

The requirements are part of the National Environmental Policy Act (NEPA), which took effect in 1970 and which is considered the bedrock of federal environmental law.

A House of Representative task force is studying revisions to the law, which opponents fear could squelch public participation in land decisions.

When Redskins owner Daniel Snyder cut more than an acre of trees on federally protected land behind his home last year, the U.S. Department of Interior's Office of the Inspector General opened an investigation into whether the Park Service — which allowed the cutting under a special agreement — had violated NEPA by not conducting an environmental assessment.

In September, C&O Canal National Historical Park Superintendent Kevin Brandt proposed a Web-based system for collecting public input on park projects — an effort specifically aimed at better compliance with NEPA. He said the on-line system was the park’s version of a nationwide park service initiative, and was not connected to the Snyder controversy.

Environmental advocates fear that changing NEPA — which draws public attention to virtually all proposed federal land actions — would undermine transparency and lead to more events like the Snyder cutting.

“It shines a light on the whole process,” said Matthew Logan, president of the Potomac Conservancy, adding that NEPA should assign monetary values to the environmental degradation caused by federal projects.

“We’re seeing not only a threat [to the law], but also simply bureaucratic maneuverings” that weaken it, Logan said, citing a park service ruling that building a boathouse on parkland beside the Potomac near Key Bridge does not require a full environmental impact statement. “It’s under attack from a couple of different directions.”

In April of last year, the House Resources Committee formed a 22-member task force to undertake a comprehensive review of the law, the first thorough federal review in its history. Members said that the task force’s goal was to modernize and streamline the law, making enforcement more efficient and curtailing protracted lawsuits.

Environmental groups fear the task force plans to gut the law, stripping away longstanding environmental protections.

“THE NATIONAL Environmental Policy Act is pretty much the Magna Carta of environmental law,” said Jennifer Zuccarelli, a spokeswoman for the NEPA task force. “It’s something they want to take time and look at carefully.”

The task force held seven regional field hearings between April and November of last year and released a draft report Dec. 21 that set out 22 recommendations based on findings from the hearings. The period for public comment on the report expired Feb. 6.

Task force Chairwoman Cathy McMorris (R-Wash.) has not signaled whether she plans to propose changes to the law or simply press federal agencies to make administrative improvements.

“She was asked by [House Resources Committee] Chairman [Richard] Pombo (R-Calif.) to take up this task force,” Zuccarelli said. “He never told her whether or not she needed to introduce legislation or whether she needed make changes or not.”

“There are elements of NEPA that are causing enough uncertainty to warrant modest improvements and modifications to … the statue,” the task force report stated. “To do nothing would be a disservice to all stakeholders who participate in the NEPA process.”

The Environmental Protection Agency reviews NEPA documents, but federal agencies like the Federal Highway Administration and the National Park Service are responsible for monitoring their own NEPA compliance.

“I don’t think anyone really seriously proposes to … roll back NEPA entirely,” said Robert Dreher who teaches natural resources law at the George Washington and Georgetown University law schools. “I think the chances are we’ll have to worry about piecemeal cuts.”

Dreher, who lives in Takoma Park, is the author of “NEPA Under Siege: The Political Assault on the National Environmental Policy Act,” a 25-page report published last year through the Georgetown Environmental Law and Policy Institute.

“THE ATTACKS on NEPA are supported by businesses and resource users who see NEPA as an impediment, by their political supporters, and by certain agency officials who object that the Act constrains their discretion,” the report states.

In an interview, Dreher said his main concern was that in its hearings the task force focused almost exclusively on the complaints by federal agencies that NEPA slows them down rather than focusing on how to actually improve the law. Even so, the task force found it difficult “to get anyone to come forward at all … [with] the views that they wanted to hear,” he said.

Dreher said that he expects little movement from the task force until after the November mid-term elections, since curtailing citizen input would not be a popular theme.

“This is a democracy law. This is a law that empowers ordinary citizens against the federal government,” Dreher said.

Zuccarelli, the task force spokeswoman, said that fears about diluting NEPA are misplaced.

Chairwoman McMorris is “not the kind of ‘shoot from the hip,’ make changes to environmental laws because she doesn’t like environmentalists’ kind of person,” Zuccarelli said. “She’s not looking to get rid of NEPA and she’s not looking to get rid of public input.”

Dreher’s report includes its own recommendations for improving NEPA, but he said that any real improvement ultimately boils down to funding and staffing.

“You can’t squeeze blood out of a stone. You’re not going to get a good analysis out of somebody if you double his workload and cut his budget in half,” Dreher said.

That comment closely mirrors a frequent complaint of Brandt’s. The C&O Canal National Historical Park’s 2001 business plan called for 299 employees. At the time it had 112, and it now has 91.

WHY THIS MATTERS

The National Environmental Policy Act requires federal agencies to study the environmental consequences of construction, land actions, and even operational decisions like employee work hours.

The act requires that the agencies study the proposed action as well as several alternatives, including doing nothing, to weigh the relative environmental impacts. The studies must be published, announced, and made available for public review and comment.

Locally, NEPA governs decisions by the National Park Service in the C&O Canal National Historical Park and along the park service-controlled Clara Barton Parkway. It has regulated the cleanup activities at the Naval Surface Warfare Center and was the conduit for public input on the controversial Intercounty Connector and Montrose Parkway road projects, both of which are partly federally funded.

“The bottom line is NEPA is basically the foundation for our environmental protections,” said Robert Dreher, an environmental law professor and former Environmental Protection Agency deputy general counsel. “It assures the people know what the federal government is doing. It assures people will be able to communicate. It’s hard to believe we didn’t have something like it before.”

The law was signed in 1969 and took effect in 1970.

“I think it has served the American public enormously well,” Dreher said. “This is a democracy law. This is a law that empowers ordinary citizens.”

A House of Representatives task force recently published recommendations for changing the law. The recommendations include establishing a NEPA ombudsman, setting standards for dealing with citizen lawsuits and redefining the term “major federal action.”

In a Sept. 29, 2005 letter to task force Chairwoman Cathy McMorris (R-Wash.), 10 former chairs of the Council on Environmental Quality, the executive branch agency that oversees NEPA, expressed concern that the pending proposals undermine NEPA’s basic principles.

“Public comments inform agencies of environmental impacts that they may have misunderstood or failed to recognize. ... The public also serves as a watchdog, ensuring that Federal agencies fulfill their responsibilities under the law,” they wrote. Measures that “limit the public’s right to participate in the NEPA process threaten NEPA’s vital role in promoting responsible government decision-making.”

That would mean more closed-door decisions like the Park Service’s 2004 granting of a special use permit allowing Redskins owner Daniel Snyder to cut an acre of trees behind his house.