When: April 25, 2018

Where: Natural Resources Committee

Title: “The Weaponization of the National Environmental Policy Act and the Implications of Environmental Lawfare”

What Happened: It’s Hispanic Heritage Month until Oct. 15, and there’s no better way to celebrate at Wasted Resources than to look back at how the majority attacked the National Environmental Policy Act (NEPA), one of the country’s greatest environmental justice laws.

We’ll take a quick look at what NEPA does, but the most important thing to know for this introduction is that it’s one of the few laws guaranteeing public input in federal decision-making before a decision is made. This is where environmental justice comes in.

Nearly 40 percent of Latinos live within 30 miles of a power plant, and Hispanics are 165 percent more likely to live in counties with unhealthy levels of power plant pollution than non-Latino whites. This means Hispanics — especially children and the elderly — risk greater exposure to increased extreme heat and weather, smog and air pollution, and even greater transmission of mosquito and tick-related diseases. They’re also more likely to suffer from asthma attacks, need sick leave from school or work, and pay higher food prices. The environmental and public health decisions the federal government makes often have a disproportionate impact on Latinos, and NEPA is one of the few tools they can use to voice their preferences before those decisions are finalized.

Communities of color have long understood the unique impacts environmental policies have on their quality of life. Civil rights leader Cesar Chavez regularly included environmental protection messages in his social justice advocacy work. Chavez’s call for greater attention to our environment and the land that sustains us continues today through a new generation of advocates and organizations that continue to express their values through every means available — especially NEPA.

Whether you’re Latino or not, if you live in a lower income part of a city, the odds are you’re more likely to face the prospect of a waste incinerator being built near your local school or a highway rammed through your neighborhood. NEPA allows you to have your say before these kinds of permanent structures get rubber-stamped and built. For similar reasons, Native American tribes frequently weigh in through the NEPA process when projects like the Keystone XL pipeline could have a major impact on their land and their cultural preservation efforts.

The benefits of this kind of public input are most visible in cases like the Arecibo facility in Puerto Rico, where residents used NEPA to halt the construction of a power plant set to run on burnt garbage. Despite the planned operation area already being badly contaminated with heavy metals, the incinerator was projected to burn more than 2,000 tons of trash every day just two miles from the largest wetland in Puerto Rico. At Arecibo, NEPA prevented nothing less than a public health and environmental catastrophe.

NEPA is one of the strongest tools we have in the pursuit of environmental justice. It’s a rare voice for otherwise unheard communities in the federal decision-making process. That’s what makes the Republicans’ handling of the law so objectionable.

As the title of today’s featured hearing suggests, the April 25 hearing got ugly. But before we get to that, let’s take a quick look at the law we’re talking about.

Among its many useful and popular provisions, NEPA says that before the federal government takes (or permits) an action that could significantly affect “the quality of the human environment,” it must hold a public comment period and produce a publicly available document explaining the environmental impacts and potential outcomes of various policy options. In cases where impacts could be severe, the agency or agencies involved in the activity — such as disturbing a wildlife habitat or constructing a huge pipeline like Keystone XL — must produce a report called an environmental impact statement (EIS), which must be scientifically and legally rigorous and withstand public scrutiny.

A full EIS is rare — only about 1 percent of federal projects are complex enough to produce one — because most government actions don’t meet the impact threshold. In less than five percent of cases, the impacts warrant the production of a lesser report called an environmental assessment. For the other 95 percent of federal actions involving NEPA, as the Government Accountability Office reported in 2014, impacts are expected to be so minor that agencies can grant what’s called a categorical exclusion, which essentially lets the action move forward without a report.

The use of categorical exclusions has been controversial in some cases. Republicans often push for their use in logging projects and other potentially destructive activities — one of many issues that would have made for a more substantive hearing than the one we got.

In this speech at the hearing, Rep. Tom McClintock (R-Calif.) claimed that we need to allow more commercial logging through categorical exclusions because there are too many big trees in the forests and that’s why wildfires are getting worse.

(Incidentally, he’s wrong. As the Sacramento Bee explained in an Aug. 16 editorial, “[T]here is a big difference between clearing overgrown brush and thinning dead trees, and neither is the same as clear-cutting acres of pristine forest. Those distinctions matter a lot as state and federal officials scramble to prevent more wildfires from charring huge swaths of the state.”)

Contrary to what Rep. McClintock and the other Republican members of the Committee keep claiming, private companies that need federal approval for certain activities (including pipeline companies, oil and gas companies, and timber companies) benefit when the NEPA process is robust. Short-cutting the approval of a new drilling or logging project doesn’t “cut red tape” — it angers the public and justifiably leads to lawsuits.

How would you feel if someone went ahead with a major project and then dared you to file a lawsuit after the fact? And then when you filed the lawsuit, they accused you of being a wild-eyed “activist” instead of a concerned citizen using the law as it’s intended? The hearing the Committee held was a two-hour version of that conversation.

Republicans on the Committee spent the hearing calling NEPA a weapon used by environmentalists to destroy our country. If you don’t believe us, here’s Rep. McClintock wondering whether there’s been a study of the “environmental damage done by NEPA.” The gist of the argument, such as it is, is that the law is delaying construction projects, logging projects, oil and gas projects and all kinds of other federally permitted projects, and we should rewrite the law so industry can just do whatever it wants already.

If you’ve been following Wasted Resources, it should come as no surprise that this entire argument is bogus — and Republicans know it. In a report on NEPA’s implementation, the Congressional Research Service found:

The time it takes to complete the NEPA process is often the focus of debate over project delays attributable to the overall environmental review stage. However, the majority of [Federal Highway Administration]-approved projects require limited documentation or analyses under NEPA. Further, when environmental requirements have caused project delays, requirements established under laws other than NEPA have generally been the source. This calls into question the degree to which the NEPA compliance process is a significant source of delay in completing either the environmental review process or overall project delivery. Causes of delay that have been identified are more often tied to local/state and project-specific factors, primarily local/state agency priorities, project funding levels, local opposition to a project, project complexity, or late changes in project scope.

Blaming NEPA for problems that have nothing to do with the law is a common tactic, as Christy Goldfuss, then the head of President Obama’s Council on Environmental Quality (CEQ), testified to this Committee in 2015:

Frequently, delays in project implementation are inaccurately attributed to the NEPA process when other factors are relevant to the time needed for decisions on all environmental reviews, permits, and approvals needed for a project to proceed. NEPA becomes the “target” because NEPA is the “commonality” — it is a part of the planning process that always applies regardless of the availability of funds or the applicability of another specific statutory or regulatory regime. Challenges securing project funding, local opposition to a project, project complexity, or changes in project scope or priorities can and often do result in delays. However, because these issues are frequently identified during the NEPA process, NEPA itself is often targeted as the culprit.

This same point was raised at the April hearing, where Rep. Nanette Barragán (D-Calif.) asked Horst Greczmiel, the former CEQ associate director for NEPA oversight, about how the law really works:

Rep. Barragán: We hear a lot of complaints about NEPA, you know, horror stories about the Act holding up economic development. Would you say that is generally not true, that these are really happening in less than one percent of the instances where NEPA causes delays?
Mr. Greczmiel: I would say that that is true. For example, there was a recent study the Treasury did on forty projects that were critical to economic development and it found that in thirty-nine of those, it was a question of funding the projects rather than any environmental review that was at issue.

In other words, NEPA itself is rarely (if ever) the main reason a project gets delayed. But Republicans at the April hearing didn’t want to talk about projects going unfinished for lack of funding. They wanted to attack a law that lets the public contribute to environmental and public health decisions.

Democrats pushed back against this upside-down reasoning. You can watch Ranking Member Raúl M. Grijalva’s (D-Ariz.) opening statement during the hearing here. As he said at the time:

The firearms that extremists used to take over a refuge in Oregon — an action most of my Republican colleagues have yet to condemn — were weapons.
The National Environmental Policy Act is not a weapon — it is a shield.
NEPA requires our government to assess threats to our environment and public health through consideration of alternatives and public input.
The law protects average citizens from an unthinking government — and it is NEPA that is under attack.

Without NEPA — or with a NEPA so weak it may as well not exist — community advocates would have fewer resources to influence federal policies that impact their lives.

It’s as simple as that.

Instead of a holding a hearing on watering down one of our country’s bedrock environmental laws, we could have focused on real substance that week.

The week before the hearing, on April 18, news came that the Antarctic ice sheet is melting even faster than previously thought, contributing to sea level rise in a previously poorly understood way. Researchers found fresh water from melting ice sheets mixing with salt water in a way that allows water to remain warmer at lower depths, melting glaciers over more surface area for long periods of time. What are the climate change implications of these findings? Does this process mean we have even more reason to slow our extraction and consumption of fossil fuels? The Committee of jurisdiction wasn’t interested.

That same day, the U.S. Forest Service, one of the public lands agencies this Committee oversees, released a report on the nation’s continuing loss of tree cover, finding that between 2009 and 2014, tree cover in “urban/community areas” declined by 0.7 percent, which translates to losing an estimated 36 million trees or approximately 175,000 acres of tree cover annually. This loss matters a great deal for resource managers and our quality of life. As one of the researchers said in releasing the report, “Urban foresters, planners and decision-makers need to understand trends in urban forests so they can develop and maintain sufficient levels of tree cover — and the accompanying forest benefits — for current and future generations of citizens.” What role can the Committee play in improving forest management practices? We never got to find out.

Also on April 18, a report in Nature documented global warming’s increasingly devastating impacts on the Great Barrier Reef, one of the world’s most important ecosystems and a shrinking stronghold for endangered marine species. As one of the study’s authors said at the time, “The Great Barrier Reef is certainly threatened by climate change, but it is not doomed if we deal very quickly with greenhouse gas emissions. Our study shows that coral reefs are already shifting radically in response to unprecedented heatwaves.” What did the Committee majority make of the findings? Apparently, nothing.

Democrats were busy that week.

On April 24, Rep. Grijalva and Sen. Maria Cantwell (D-Wash.), ranking member of the Senate Committee on Energy and Natural Resources, led a bicameral letter to Interior Secretary Ryan Zinke urging him to stop preparations for a potential 2019 oil and gas lease sale in Alaska’s Beaufort Sea, an area not included in the Bureau of Ocean Energy Management’s offshore oil and gas leasing program. As the authors wrote, the effort was “an attempt to fast-track dangerous and unpopular oil drilling in vulnerable Arctic waters [that] ignores ongoing legal action regarding permanent protections in the region, and will likely end up wasting taxpayer funds and agency resources.”

On April 25, Rep. Grijalva cautioned Republicans against voting for Rep. Cathy McMorris Rodgers’ (R-Wash.) bill mandating an inadequate recovery plan for Pacific salmon. As Grijalva noted at the time, the bill is deeply unpopular across the Pacific Northwest. No fewer than 140 local businesses and business associations sent an open letter to Congress on April 20 opposing the bill, noting the long-lasting damage it would do to the regional economy.

That same day, Committee Democrats previewed their plan to demand that the oil and gas industry take responsibility for its significant role in causing the destruction of Louisiana wetlands and pay its fair share to help repair the damage. A study by the U.S. Geological Survey in 2000 attributed 36 percent of Louisiana’s coastal land loss since 1932 directly to oil and gas industry activities, and a report conducted for the Louisiana Department of Natural Resources concluded that industry activities were responsible for 76 percent of the land loss in two coastal Louisiana parishes.

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