Standing Ground | Sept 2009 | Margaret Byfield --

The National Environmental Policy Act (NEPA) is familiar in concept at least to most people involved in the natural resources issues, because it is triggered for compliance with every major federal (and often state) action taken. However, few people have read the statute, as common perception is that the Act is complex and anti productive use. Neither assumption is correct. The statute is only three regular sized pages in length and its primary objective is to protect the “human” environment.

The statute opens with the following mandate: 

“To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man.”  In 1969, Congress passed the mandate as the Congressional Declaration of Environmental Purpose for America (42 USC 4321).  It is the opening passage of NEPA, and it states the preeminent position of our government on environmental policy.  This policy was established by Congress to protect the “health and welfare of man,” and stewardship was this law’s focus, requiring “productive” use of the resources instead of an agenda of non use. 

This same law created the Council on Environmental Quality (CEQ), a cabinet level position in the White House that sets the regulations for implementing the law.  These regulations further support NEPA’s intent to protect the “human” environment. 

  NEPA’s purpose, as well as its history, is unique when compared to other environmental laws. Unlike the 35-plus major environmental bills filed in the 90th and 91st Congress of the late 1960s, NEPA was not advocated by militant organized environmental activists.  In fact, they paid little attention to the legislation until late in the process, when they recognized it could play a role in stopping unwanted projects.  This is likely the reason the text emphasizes man’s environment and the productive use of the environment.  When read in its entirety, it is clear the intent of Congress was to ensure a healthy, productive environment for man’s benefit. 

Because NEPA’s function is to require a specific process of analysis be followed before an agency implements a major federal action, NEPA fulfills the unique role of effectively amending the goals and planning policy of every federal agency. The law itself sets up the criteria and process by which major federal actions must be evaluated before being approved, usually through an Environmental Impact Statement (EIS), requiring federal agencies and many state agencies to conduct this analysis before implementing programs.  Simply put, the NEPA process is required for every major action federal agencies are a part of, directly or indirectly. This includes writing new regulations such as site specific Travel Management Plans, revising forest plans, creating or expanding highways, designating critical habitats for a species, etc.

Unfortunately, however, the radical environmental agenda saw the benefits of NEPA long before private property advocates.  As a result they have used this law for their purpose, with no resistance from our side in defending social, economic and productive uses during the NEPA process. 

This is beginning to change as landowners and local governments across the nation recognize what a key role this federal law can play in protecting productive use, the local economy and the safety and welfare of the citizens.  NEPA is the environmental policy of the nation that slipped by the radical groups opposing man’s use of the environment.  Every federal agency must comply with this law whenever they take any major federal action, giving America’s landowners, who recognize the true intent of the act, an opportunity to once again find protection. 

Purpose of NEPA

At 42 USC 4331 (a), Congress declares the following to be our national environmental policy: 

“The Congress, recognizing the profound impact of man’s activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploration and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, 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.” 

Congress identifies the following elements as providing the need for NEPA: “population growth, high-density urbanization, industrial expansion, resource exploration and new and expanding technological advances.”  Notice, it does not identify as a threat the activities of rural agriculture producing food from the land.  Projects such as “smart growth,” would fall into the category of concern identified by Congress, and in studying the impact of these projects, the agencies are required to ensure the quality of the natural environment for the welfare of man. The primary reason for considering the impact on the natural environment is provide man a healthy environment in which to live and produce. 

Further in this passage, Congress directs the federal government to use all means “to create and maintain conditions under which man and nature can exist in productive harmony.” The word “productive” has a specific meaning.  The resources are to be used, made productive.  Congress’ intent with NEPA was not to prevent the use of the resources, but rather to determine the best use of the resources before they were irreversibly altered.  This takes you back to the days of Adam and Eve, where God gave the first humans two commandments:  till the earth, and do not eat fruit from the tree of good and evil.  They failed in keeping the second commandment, and if environmentalists have their way we will fail at the first as well. 

Finally, in paragraph 4331(a), Congress mandates that all this is to be done in order to “fulfill the social, economic and other requirements of present and future generations of Americans.” Species, plants and air quality do not have economic concerns —people do.  All of these elements are to be considered for the express benefit of Americans.  NEPA studies were never intended to be one dimensional, focusing solely on the natural environment.  But, when you have one political agenda using and litigating the law, the setting of the cases will be weighed starkly in their favor.

Environmental Activism 

To ensure the results they wanted, the radicals picked their judges.  They studied very carefully the jurisdictions in which they brought NEPA cases.  The Ninth Circuit became the promised land for them because of the activist nature and environmentally biased judges.  Once they secured a foothold with one victory, the decision became precedent for the next, and so on up the ladder of litigation experiences.  Decades ago they set their strategy and put it in motion. 

With their string of victories, they wound their way into the offices of the resource management agencies, talking to them daily, warning them about litigation, threatening litigation.   It has become commonplace for management agency personnel to say “if I did that the environmentalists would sue.” So, their success in litigation has led to management through intimidation.  Today, one would have difficulty finding agency personnel who even understood the purpose of NEPA, other than protection of the natural environment — the trees, the shrubs, the species — without any consideration of the human economy and human productivity. 

The Human Environment 

Throughout NEPA, environment is referred to in three ways:  natural environment, human environment and environment.  When just the natural or human environment is intended in the text, it is so identified.  When “environment” is used alone it must, therefore, be intended to refer to both the human and natural environment.  That is the result of just common sense reading of the statutory language.  The general term means the “whole,” the specific term means the “part of the whole.” Those of us from the property rights perspective tend to react to the word “environment” as something only for nature.  When reading NEPA, “environment” includes both the human and natural.

 Congress specified what must be included “in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment,” (42 USC 4331(c)), which is the list of elements that must be in an Environmental Impact Statement. They specified that this study be done for the purpose of studying the effects on the “human” environment.  As to the elements that must be included in the report, environment alone is used so both human and natural environments are implied:

• (i)  the environmental impact of the proposed action;
• (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented;
• (iii) alternatives to the proposed action;
• (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and;
• (v) any irreversible and irretrievable commitments of resources that would be involved in the proposed action should it be implemented.

Coordination in NEPA

 There may be no better process to utilize NEPA than through coordination.  Local governments with whom the agencies are directed to coordinate these studies are the proper entity to raise the issues that impact the human environment, as local governments are responsible for the community, the local economy, the safety of the citizens, among other priorities. 

NEPA requires that the agencies coordinate with local governments.  In section 4331(a), cited above, Congress set apart the relationship between the federal government and state and local governments from that of the public and private organizations. This section reads “…  it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations …”  Notice the sentence structure distinguishes the two groups.  The first are units of government, the second are public and private entities, or non-governmental entities. 

Following this at 42 USC 4331 (b), Congress directs the federal government to “… coordinate federal plans, functions, programs and resources …” This coordination is with the federal government and the government units identified in the previous section, not the public.  The public has no authority or standing to implement “plans, functions, programs and resources” in a manner binding on the citizens. State and local governments do.  So by way of these sections of the statute, any agency carrying out an environmental study under NEPA has been directed by Congress to coordinate that study with local governments.  

When a local government requires that the study be coordinated with them, the agency is required to follow the five criteria for coordination defined in the sister statute, the Federal Land Policy and Management Act (FLPMA).  The Supreme Court has ruled that when Congress defines a word in one statute, uses the word in a sister statute and does not redefine this, then we are to presume Congress intended the same definition.  So, the FLPMA criterion applies to the NEPA requirement for coordination as well.  This is: 

• Prior notice (before the general public)
• Meaningful input into the process
• Agency shall keep apprised of the local governments plans
• Consideration shall be given to the local governments plans during the process
• Every practicable effort shall be made to make federal plans consistent with the local plans.

In a typical NEPA study, the lead agency begins the study by conducting “scoping,” which is the process by which they gather information about the proposed project, determine the issues that likely will be impacted by the project, and write the “draft” study for review by the public.  In this draft, alternatives to the proposed action are to be listed and studied so that the public can analyze and determine the best option, which includes a “no action” alternative.  A typical example of this would be a highway project in which four unique routes are compared using the criteria set forth in the statute. 

Once the draft is released, the public is given a period in which to submit written comments, and during which public hearings are usually held.  The public process is largely viewed as meaningless, as their comments are summarized and cataloged in the final document, but rarely, if ever, do they cause the agency to change course and agree with the public. After the comment period closes on the draft study, the agency compiles and answers the comments, then releases a final study, giving the public one last opportunity to submit further positions.  This final comment period by law only has to last 30 days after which the approving agency determines there are no significant impacts, the record of decision is issued and the project has cleared the necessary environmental hurdle to move forward. 

By comparison, local governments in the coordination process have a much greater level of participation in the NEPA process than the public.  Their involvement begins from the moment the project is being considered and a study is contemplated.  They should be notified of the study (prior notice) at the beginning of the scoping process so that they have the advance time to apprise the agency of the issues of importance to the local government and put forward any plans the local government may have that should be considered in the study.  Federal and state agencies often resist local government’s insistence that the study be coordinated with them, taking the position that they cannot discuss the details of the study with them until the draft study has been released.  This is not only a violation of the coordination process, but a violation of the CEQ rules.  At 40 CFR 1507.1(a) the regulations state that, “As part of the scoping process the lead agency shall: (1) Invite the participation of affected Federal, State and local agencies …”  This rule makes it clear that local governments are to be involved in a meaningful way at the very beginning of the study.  

The local government is also entitled to have its position stated in the published draft study.  Under “environmental consequences,” the rules require the agency to include (1502.16(c)) “Possible conflicts between the proposed action and the objective 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.”  The agency cannot fulfill its obligation under this rule unless it coordinates with the local government at the beginning of the study, thereby learning specifically the possible conflicts that may exist. 

This is further emphasized at rule 1506.2(d): “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.”  Again, how can the agency comply with the rule, unless it is coordinating from the beginning with the local government, where they will learn about the inconsistencies with local plans in order to discuss how these differences will be reconciled? 

Agencies attempt to argue that local governments can only have this level of participation in the study process if they are a “cooperative agency.”  This is a false position, as neither the rules nor statute state this level of participation is exclusive to those entities in a “cooperative” role.  Certainly, a local government could ask the agency to participate as a “cooperator,” but doing so does not preclude the local government from requiring that the study be coordinated.  There is a reason, however, that agencies discourage coordinating the study and encourage local governments into a cooperative role.  

The rules for cooperator agency status are spelled out at 1501.6.  If a local government is accepted as a cooperative agency then it agrees to help develop analysis, make available staff support, and use its own funds in preparing reports for the study.  Yet, there is no guarantee that the reports funded and produced by the local governments will be meaningfully considered as they must be through coordination.  In fact, many local governments that have participated in studies as cooperators have found the time and money wasteful.  Some have withdrawn their cooperator status and instead required the agency to coordinate the study with them, where the full burden of the study preparation is on the federal or state agency. In a coordination role, the local government arguably has a better position to insist the local position is considered without being obligated to funding and staffing the study. 

Using NEPA for Landowners 

Congress distinguished the role and importance of local government in making the NEPA process successful at the very beginning of the act.  They recognized local governments represent the public and, therefore, have a higher standing than the public in NEPA.  Because they represent the public, they did not intend for the agencies to blend the position of local governments into the public commenting process; rather, they intended for the local governments to have a prominent role in the development of the study to the point of ensuring their position was specifically identified when a study document was released to the public.

They also did not leave as their only option to give up their local government duties to the people and instead operate as an “agency,” or a “cooperating agency.” The cooperator section of the rules is entirely appropriate to establish a working relationship between agencies that are appointed by government officials, but not always appropriate for a local governments of elected officials who answer directly to the people most affected by the result of the project being studied.  

Congress also did not intend for NEPA to be a one-sided political tool to drive those who produce our food off their land and out of business.  Rather the opposite was the intent and purpose.  Local governments, through coordination, have the opportunity to utilize this federal law for the purpose intended, to protect man’s environment. 

As Americans look for opportunities to right a ship that has been destroying the keystone principle upon which our nation is founded — property rights — certainly one critical tool to accomplish this can be NEPA. This Act defines environmental policy in America with the purpose of protecting productive use, is triggered by the action of every federal agency, and can be effectively utilized by the first and closets form of government to the people — local governments.