Coordination Works | December 10, 2010 | Margaret Byfield --

In a recent Coordination Class in Casper, Wyoming, I asked an audience of landowners and local government officials if they liked dealing with the National Environmental Policy Act (NEPA).  Their response was a resounding “no,” which is the reaction landowners and private property advocates normally have when you mention the federal law.

 It is understandable because NEPA has been effectively used by environmental organizations and the federal government as a tool to shut down productive agriculture since its passage in 1970.

However, believe it or not, the NEPA process can actually be used as a way to advocate and protect production agriculture and our way of life.  In fact, the law not only allows this, but it requires that the impact on our “human” environment be fully considered.

Let me explain.

The National Environmental Policy Act is the federal law which requires an environmental study be conducted before a “major federal action” occurs.  These studies are typically “environmental assessments,” or “EA’s” and “Environmental Impact Statements,” or “EIS’s.”  Environmentalists are very adept at involving themselves in this analysis process from an environmental perspective where they advocate against productive uses of land like timber harvesting, cattle grazing, recreational use, oil and gas exploration, and the like. 

If properly done, a completed EIS selects a “preferred alternative” providing the basis and conditions for environmental clearance of a project.  For landowners in the western federal lands states, this often means severe grazing reductions, reduced timber sales, and limited access to recreational lands.

What may surprise you is that NEPA provides landowners a tremendous opportunity to demand that the productive uses of our land be protected.

Here are three reasons why landowners should like NEPA:

1.         NEPA Requires the Study be Coordinated with Local Government

NEPA requires that the analysis conducted be coordinated with local governments. 

This means that the local governments must be involved in the process from the beginning and their positions taken into account throughout the study.  Their position cannot be ignored but rather must be discuss and analyzed.  The agencies are also required to work to resolve inconsistencies between the local government position and the federal agency’s position.  Unlike the position of the public and cooperating agencies, local governments that have asserted their coordinate authority cannot be ignored.

2.         The Purpose of NEPA is “Productive” Harmony

Congress declared through NEPA that it is the national environmental policy “to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.”

NEPA was never intended to be a one-sided “environmental” analysis; rather, it mandated that both the human and natural environment be considered and specifically requires that the impact on the productive use of the land and the social and economic pressures be a major part of the study.

In practice, the impact to the human environment is minimally considered in these studies. Environmentalists have been very successful at keeping the agencies focused on the natural environment, such a species, ecosystems, riparian areas, etc.  Until recently, most landowners had no idea they could utilize the coordination process to hold federal and state agencies accountable and require them to perform the proper NEPA analysis showing the impacts their decisions will have on local economies and the people. 

In other words, when coordination is asserted and the local position is well advocated, the NEPA process can protect landowners, their private property, and their local economy.

This is how the Eastern Central Sub-Regional Planning Commission defeated the I-35 Trans-Texas Corridor.  Through the coordination process, they challenged the validity of the EIS because it failed to take into account the impact the superhighway would have: 1) on the local economy of the towns it bisected; 2) on the social cohesiveness of the people who lived in these rural communities; and, 3) on the productive use of the rich Blackland Prairie the Eastern Central Texas farmland community is built on.

The Texas Department of Transportation’s (TxDoT) failure to fully analyze these issues in the study is the primary reason the Federal Highway Administration made known they could not give the project environmental clearance.  TxDoT then made the decision to recommend the “no build” alternative.

Requiring coordination and challenging the EIS through this process, the five mayors, their respective school districts, and local businessman Ralph Snyder, stopped the $80 billion corridor.

Imagine if local governments asserted their coordinate role in the NEPA process and provided the factual basis for increased grazing, timber production, and access to the federal lands.  Perhaps forests in the Northwest wouldn’t be shut down because of the spotted owl and grazing numbers would be up in the west, instead of declining.

3.         NEPA Regulations Require Agencies to “Reconcile” its Action with Local Plans

The regulations implementing NEPA require that the agencies discuss and analyze the local government’s position in their draft and final documents and discuss any conflicts that cannot be resolved. 

There are two specific regulations worth noting.

• - 40 CFR 1502.16(c) requires that the study discuss:  “Possible conflicts between the proposed action and the objectives of Federal, regional, State, and local (and in the case of a reservation, Indian tribe) land use plans, policies and controls for the area concerned.”
  
  Required, by regulations, is a specific discussion of the local government’s objectives, plans, policies and controls.  If the study does not include these, then you have a basis to challenge the validity of the study.
  
  - 40 CFR 1506.2(d) requires: “To better integrate environmental impact statements into State or local planning processes, statements shall discuss any inconsistency of a proposed action with any approved State or local plan and laws (whether or not federally sanctioned).  Where an inconsistency exists, the statement should describe the extent to which the agency would reconcile its proposed action with the plan or law.”

The EIS must discuss inconsistencies between the lead agency’s proposed action and your local government’s plans.  Then, the EIS must include what effort has been made by the agency to work to reconcile the inconsistencies.  This places a much higher burden on the agency, as they cannot just ignore your position.  And, finally, the regulations require that they actively work to find ways to resolve the inconsistencies, and if they cannot, explain in the analysis why these could not be resolved.

The only way this requirement can be met is by local governments invoking their coordinate status.  It will never be met or required if local governments only participate in the process by submitting public comments or as a cooperating agency. 

Advocate Your Position

Rarely do the agencies prepare an EIS that complies with these two regulations, let alone the other critical elements of the law which requires them to conduct a thorough analysis of the impact a proposed action will have on the productive use of our land and local economy.  Requiring such accountability will require your involvement.

If you are an agricultural producer or live in rural America, at some point you will likely become involved in a NEPA process.  Take a closer look at the Act and see how you can utilize the process to advocate and protect your way of life.  Congress made the way.  We just need to seize the opportunity.

For more information on NEPA, click Here.

Other Resources: 

Five Elements of Coordination
Nine Reasons for Avoiding Cooperating Agency Status