American Dream

THE NATION

National Environmental Policy Act Is 'at a Crossroads'

The 35-year-old law gives citizens input in the review of land-use proposals. Those who say it slows progress are trying to curb its power.
By Tim Reiterman
Times Staff Writer

July 7, 2005

Quotes:

SAN FRANCISCO — After the National Environmental Policy Act was adopted 35 years ago, the law led to a major design change in one of the nation's most ambitious energy projects — the 800-mile pipeline that carries oil from Alaska's North Slope.

As a result of the often contentious ecological review, most of the pipeline was laid above ground so it would not damage the
fragile permafrost, and built in a way that would not block the movement of caribou herds.

More recently, the law assured San Franciscans a voice in the conversion of one of the city's most prized historic sites — the old Army Presidio — into a national recreation area designed to be self-supporting and divided into open space, public use areas and commercial offices, including a recently opened 23-acre digital arts center built by "Star Wars" creator George Lucas.

Now, however, NEPA is facing strong challenges from the Bush administration, Congress and business interests who say the law has been holding up progress on a number of fronts, among them building highways, preventing forest fires and drilling for oil and gas in the Rocky Mountains.

The House version of the pending energy bill would exempt many oil and gas exploration projects from NEPA review. And a congressional committee is holding public hearings with the stated intention of changing how the law works. To expedite a wide range of projects, the administration and lawmakers have exempted some categories of federal actions from NEPA assessments or limited their scope.

The federal government takes an estimated 50,000 actions each year — including building campgrounds in national forests and
plotting the routes of superhighways. And, to varying degrees, every one of those actions involving federal land, funds and permits is subject to scrutiny under NEPA.

The three-page statute, known as the Magna Carta of environmental law, required the government for the first time to involve the public in decisions that could harm natural surroundings or disturb neighborhoods. The law has been imitated by other countries and many states.

But its critics — including mining, timber and energy companies, developers, farmers and ranchers — have long chafed under the costly and protracted environmental reviews that the law often sets in motion.

"NEPA is at a crossroads," said Bradley C. Karkkainen, a University of Minnesota law professor who is an expert on the statute. "We could end up undoing 35 years of progress or [providing] a NEPA that can address the environmental challenges of the 21st century. It could go either way."

Along with the Endangered Species Act, the Clean Water Act and other environmental laws, NEPA was adopted after the catastrophic 1969 oil rig blowout that blackened Santa Barbara County beaches and killed thousands of seabirds.

For the first time, the law guaranteed the public information and a forum on many matters directly affecting their lives. "It affects the air they breathe, the water they drink, their recreational resources and the views they enjoy," said Lucy Swartz, a former government lawyer who now serves on the
board of the National Assn. of Environmental Professionals.

However, those calling for changes to NEPA say the law has made it far too easy for environmentalists and others to mount legal challenges over technicalities. "It has been used as a stick in the spokes of the wheels of progress," said Russ Brooks, an attorney for the property rights-oriented
Pacific Legal Foundation.

Proponents of the law fear that a House Resources Committee task force recently convened by Chairman Richard W. Pombo (R-Tracy) is setting the stage to gut the law. Pombo and Republican colleagues proposed the exemptions now pending in the House energy bill. The task force is conducting public hearings around the country to review NEPA.

"Over the past few years, it has been death by a thousand cuts," said Neha Bhatt, a Sierra Club representative in Washington. "We see these hearings as an attempt to build a bad public record and come back with a big hit overhauling the existing law."

Pombo said the accumulation of requests for exemptions for energy, transportation, defense and domestic security projects signaled the need for a thorough reexamination of the law. "Everyone is complaining about the way NEPA works," he said.

James L. Connaughton, chairman of the White House Council on Environmental Quality, said the law generally was working well, but that the administration was trying to accelerate some environmental assessments without sacrificing protection.

During the first congressional task force hearing, held in April in Spokane, Wash., Utah mining executive Luke Russell
called NEPA "a monster, devouring millions of dollars and years of time needlessly on redundant studies, conflicting requirements and wasteful litigation."