Environmental law gets second look - too much red tape stalls action and threatens natural resources, critics say


The Olympian

WASHINGTON The Bush administration is studying how it complies with one of the nation's oldest and most pervasive environmental laws, saying it wants to use 21st century technology and management techniques to cut red tape.

At issue is the National Environmental Policy Act, or NEPA. Signed by President Nixon in 1970, it requires the government to study and report how its timber sales, grazing leases, dredging projects and other agency activities would affect the natural world.

The Vietnam-era law grew out of public desire for more open government, and the environmental movement has relied on it to limit development of public lands and waterways considered crucial for endangered species.

But over the years, critics charge, the law also has helped create a swamp of regulations and logistical delays that stall agency action and as a result, sometimes threaten the natural resources the law was created to protect.

Compliance with NEPA, for example, has delayed salvage of timber after wildfires, and it threatens to stall thinning of overgrown forests that remain at risk, said Chris West, vice president of the American Forest Resource Council in Portland.

"We think that NEPA's role as originally intended was to conduct an analysis and document a decision," West said. "What we see today is that the analysis is the product."

The review of NEPA is about improving process, not shifting policy, according to the White House Council on Environmental Quality, which is supervising the effort.

But environmental advocates worry that administrative changes could weaken the law. In their view, the law serves as a check on big government, giving the public access to data and a vehicle to offer comments. If anything, the heavy workload of complying with NEPA demonstrates that the law is working as intended, they said.

"More people than ever before care about the environment, and people want to get involved in governmental actions that are going to affect environmental quality," said Chris Wood, director of public lands and watershed programs for Trout Unlimited. "To my way of thinking, it's a good thing."

The tangible product of NEPA is often an environmental impact statement, a document that details the government's options and catalogs comments from the public and agency staff. A statement can take years to prepare and can run into multiple volumes.

Agencies rely on such statements to establish scientific, legal and economic grounds for government action -- or in some cases, inaction. The Clinton administration's "roadless rule" blocking construction of new logging roads in 58 million acres of remote forests, for instance, was the result of the process laid out by NEPA.

Roadless wonder 

The roadless rule, now under review by the Bush administration, is cited as a high-profile example of all that is good and bad about NEPA.

The Forest Service solicited more than 1 million comments and held 600 public meetings -- a mammoth bureaucratic undertaking that spanned most of the second Clinton administration. Environmentalists view the rule as a model of open process; industry officials see the NEPA process as a bureaucratic cover for a politically driven decision.

The White House environmental council announced its plan to review NEPA in the July 9 edition of the Federal Register. The council asked for public comments on how to expand use of broad "programmatic" analyses that could cover a series of decisions and of "categorical exclusions" that could apply old analyses to new situations. It also asked for advice on managing databases.

Critics of Bush administration environmental policies said that questions posed in the announcement could lead to new regulations giving agencies leeway to make decisions without fully vetting their impact or informing the public.

"Instead of trying to focus on making the NEPA process work better, the emphasis seems to be on getting agencies out from under the NEPA process," said John Echeverria, director of the Environmental Law and Policy Institute at Georgetown University Law School.

Sam Thernstrom, a spokesman for the environmental council said the White House has no such plans. The goal is to update an aging law, although it's unclear what changes, if any, will result, he said. A nine-member task force will take public comments through Aug. 23 and is expected to make a report by the end of the year.

"I think the professor is prejudging the outcome of the process," Thernstrom said. "It's a 30-year-old law at this point. Things change over time, and sometimes there are opportunities for improvement."

Meeting in Aurora Nevertheless, the administration's review of NEPA has delighted timber industry officials, who have made reform of the law one of their top priorities.

West and other members of his industry group the American Forest Resource Council aired their concerns during a meeting with key administration officials Dec. 18 at the Aurora headquarters of Columbia Helicopters Inc.

Among the officials from Washington, D.C., was James Connaughton, chairman of the White House environmental council, according to documents released to The Oregonian under the Freedom of Information Act.

Connaughton was presented with a package of proposed administrative actions that could help the struggling timber industry, including a one-page list of 10 suggestions for implementing NEPA more efficiently.

The list outlined ways that agencies could limit the use and scope of environmental analyses. Fourth on the list, for example, was to "define the geographic area" that would be covered by an environmental impact statement.

Thernstrom said the December meeting had no bearing on the administration's decision to review NEPA nor was the review part of what critics allege is a broader effort to roll back regulations that industry finds costly or troublesome.

Rather, the idea "filtered up" from employees in an array of agencies that bear the heaviest burden of compliance with the law, he said.

"This has not been presented to me as a political issue or as something the previous administration was doing one way and we want to do differently," Thernstrom said. "This really is something that is coming up from the practitioners in the field, not industry calls or political pressures one way or the other."

But West, the industry group vice president, said the meeting with Connaughton was a welcome change from similar encounters with Clinton administration officials, who often sided with environmental groups. West and other participants said Connaughton made no promises, but he listened closely and seemed receptive.

"I don't see a decision already made here," West said. "They're asking for input, and the whole playing field is open."

You can reach Jim Barnett at jim.barnett@newhouse.com or leave a voice message at 503-294-7604.

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