“It is not often that one has the opportunity to review an experiment in governance with the perspective of 40 years of experience.” Thus begins the foreword, by Russell Train, first Chair of the Council on Environmental Quality, to a recent report entitled NEPA Success Stories: Celebrating 40 Years of Transparency and Open Government. The report, prepared by the Environmental Law Institute (ELI), the Grand Canyon Trust, and the Partnership Project, uses the occasion of NEPA’s 40th anniversary to examine the “revolutionary change in governmental decisionmaking” brought about by NEPA. It describes 13 examples, three of which are DOE’s, of how NEPA helps improve Government decisionmaking through public input and collaboration with other agencies.
Mr. Train noted that by requiring Government officials to listen to the public and seek comment before acting, “NEPA democratized decisionmaking.” These “quiet” NEPA success stories “fundamentally examine how public involvement and careful consideration of alternatives has produced better outcomes,” he wrote.
The report highlights four important benefits of the NEPA process:
- NEPA recognizes that when the experts work together, public and Federal government collaboration results in better decisions. Public input often provides perspectives not considered by Federal officials. The public may present alternatives, data, and environmental issues that a Federal agency would not have otherwise identified or studied.
- Public input really matters. Federal officials have an obligation under NEPA not simply to solicit or collect public input, but to consider it. Most importantly, this information can change the course of an agency’s decisionmaking; Federal agencies have selected alternatives that were identified by members of the public. In addition, members of the public have identified errors in the underlying data or analyses that have affected the decisions made.
- NEPA requires agencies to explain themselves. The NEPA regulations lay out the decisionmaking process that Federal agencies must follow. Federal officials have a duty to explain their decisions and respond to all substantive comments, either noting how they were resolved in the analysis or why no changes were warranted.
- Courts play an important role. The courts are available to members of the public to address their concerns with an agency’s NEPA process. The cases that are litigated are important, but the knowledge that litigation is an option helps ensure that Federal agencies complete a comprehensive, substantive review to avoid that path.
The following are brief summaries of the 13 case studies as presented in NEPA Success Stories.
The NEPA process derives its power and usefulness from the way in which it provides other agencies, tribes, local governments, independent scientists, companies, and citizens an opportunity to actively participate in and contribute to these considerations. — NEPA Success Stories
DOE NEPA Success Stories
Robust Consideration of Alternatives Protects Drinking Water
The case of the Moab Uranium Millsite shows how a thorough NEPA review of reasonable alternatives and their environmental consequences – including those identified by members of the public – leads to better decisionmaking. The site contained almost 16 million tons of uranium mill tailings piled within the floodplain of the Colorado River, which serves as a primary drinking water supply for millions of people. The case summary notes that after issuing a single-alternative EA in 1986, the U.S. Nuclear Regulatory Commission (NRC) issued a finding of no significant impact in 1993 on the mill owner’s plan to cap the tailings pile in place.
The local county government protested this decision, wishing an alternate location to be considered, and Senator Orrin Hatch asked the NRC to prepare a full EIS on disposal options. The NRC believed that it could evaluate only alternatives proposed by its licensee, and so its EIS continued to examine only one action alternative. The EIS also did not address ground and surface water contamination because NRC determined there was no risk of contamination. Several Federal agencies challenged this assessment, presenting evidence of existing contamination. After the mill owner filed for bankruptcy, Congress assigned cleanup responsibility to DOE.
DOE held public scoping meetings and issued a draft EIS that explored the alternative of moving the tailings to a safer place. The Department received comments from diverse stakeholders, including bipartisan coalitions of Governors and Members of Congress; Federal, state, and local agencies; conservation groups; and members of the public. As a result of these comments, DOE gave greater consideration to the alternative of offsite disposal based on the risks of water contamination and to remediation alternatives, and the 2005 record of decision selected the preferred alternative from the final EIS, removing and relocating the tailings.
Interagency Comments Spur Mitigation Planning
DOE’s experience preparing the site-wide EIS for Los Alamos National Laboratory (LANL) illustrates the valuable insight to be gained through interagency comments as part of the NEPA process. The draft EIS issued by DOE in 1998 did not identify wildfire as a plausible risk in its accident scenarios. Citing a then-recent U.S. Forest Service report about the threat of wildfire, commenters from the U.S. Department of the Interior and the Forest Service urged DOE to consider wildfire in its analysis. As a result, the final EIS included an extensive wildfire as an accident scenario. DOE committed to develop a wildfire mitigation plan by the end of 1999 and immediately implemented its recommendations to reduce potential fire impacts. Less than a year later, the Cerro Grande Fire broke out, burning 7,650 acres of the LANL site. DOE relied on the final EIS to respond to public concerns during the fire and to plan post-fire recovery. As noted by Eric Cohen of the DOE Office of NEPA Policy and Compliance in his summary of the case, “Without the interagency comments DOE received during the draft EIS stage, DOE may have not had the foresight to consider and prepare for the possibility of a fire, resulting in more severe damage to LANL and the surrounding area.”
Considering Purpose and Need Results in Better Decisions
The emphasis in the NEPA process on identifying the purpose and need for agency action supports the development of appropriate alternatives, as illustrated by DOE’s analysis of alternative technologies for tritium production. In 1989, DOE began preparing an EIS to evaluate alternative reactor technologies and locations to produce tritium to support the U.S. nuclear weapons stockpile. However, by 1992, the Cold War had ended and tritium requirements were expected to drop by as much as 75 percent. This provided a new opportunity to consider alternatives previously rejected because they would not have supplied sufficient tritium for Cold War planning levels, wrote Brian Costner, DOE NEPA Office, in the case summary.
Admiral James Watkins, then Secretary of Energy, explained at the time that the analyses performed for the tritium production reactor EIS helped him avoid making a bad decision. “[T]hank God for NEPA,” said Secretary Watkins,“ because there were so many pressures to make a selection for a technology that might have been forced upon us and that would have been wrong for the country.”
Other Agency NEPA Success Stories
Expansion of an Army National Guard Readiness Center – Army National Guard Bureau
Issue: Provide new office space and parking for 1,200 relocated staff while addressing traffic concerns
NEPA Process: In response to an EA for new office and parking facilities, cooperating agencies, local government, community leaders, and the public identified significant concerns with regard to traffic congestion and transportation management. The Army National Guard Bureau held public meetings to better understand the concerns. Public comment helped the Army understand potential adverse effects and develop solutions to mitigate them.
NEPA Lesson: The successful implementation of mitigation measures can further NEPA’s goal of protecting the environment and can also improve the overall project.
A Highway, a Wetland, and a Divided Community – Federal Highway Administration
Issue: Reconcile the need to build a highway in wetlands with the desire to expand and protect those wetlands.
NEPA Process: In both the draft EIS and supplemental draft EIS for a highway project, all action alternatives crossed through wetlands. The subsequent permitting process determined that information was needed on alternatives that did not cross wetlands. Pro-highway and pro-wetland groups formed a professionally facilitated collaborative to consider alternatives and encourage development of an integrated land use and transportation solution that would be broadly supported by stakeholders. The Federal Highway Administration selected a “no-build” option, meaning that the highway would not be built through wetlands.
NEPA Lesson: NEPA’s requirement to consider alternatives can serve as the key to breaking a stalemate among stakeholders.
Preserving a Historic Brick Highway – Texas Department of Transportation
Issue: Provide for roadway safety and preserve a historic highway
NEPA Process: The Texas Department of Transportation was concerned that a brick roadway had deteriorated and become unsafe, while local residents wanted to retain the historic highway. The Department took care to involve locals in the scoping process, resulting in a productive discussion of alternatives. The public continued to be involved after the selection of the preferred alternative all the way through construction.
NEPA Lesson: The NEPA process can bridge distance between government and the local community, resulting in greater trust.
Joshua Tree National Park – Department of the Navy
Issue: Allow training flights while avoiding disturbance to national park visitors and staff
NEPA Process: An EIS for basing a new type of aircraft at a naval air station gave the National Park Service opportunity to comment on low flights over a national park. However, the Navy’s record of decision did not address these concerns. Staff from the National Park Service and the Navy prepared an EA to analyze locations for flight paths and developed a solution allowing for low flights in less sensitive areas of the park.
NEPA Lesson: The NEPA process can provide an avenue for developing consensus.
Siskiyou National Forest Watershed Protection Project – Forest Service
Issue: Reduce wildfire risks while protecting water quality
NEPA Process: The Forest Service planned to improve protection from wildfire by removing large trees in a national forest and selling the timber. Community members objected, citing water quality concerns, and formed a diverse group to oppose the project. The group participated in the EIS public comment process and developed an alternative proposal to thin only smaller trees and leave the large fire-resistant trees.
NEPA Lesson: The NEPA process provides an opportunity for the public to propose improvements to an agency proposal.
Rethinking Routes and Roads on a National Forest – Forest Service
Issue: Balance environmental protection with recreational uses of a national forest
NEPA Process: The Forest Service is required to establish what routes are open to different types of vehicles for each of its national forests. The debate can be intense between competing desires for environmental protection and economic development related to the recreational use of vehicles in the forest. The Service facilitated public input to the EIS by providing detailed data about the existing routes, their current uses, and related environmental concerns. The scoping period was extended by a year to allow the Service to hold in-depth discussions with commentors who had proposed individual routes. Although the Service ultimately decided to close a significant number of existing routes, its decision was broadly accepted.
NEPA Lesson: A flexible NEPA process gives the public an opportunity to be a part of, and more readily accept, the final decision.
Hells Canyon Comprehensive Management Plan – Forest Service
Issue: Revision of a comprehensive land use management plan
NEPA Process: The Forest Service intended to revise a land use management plan. Before the end of the scoping process, a group comprising tribal, state, and local government representatives; environmental organizations; and outside consultants developed an alternative proposal for consideration. The first draft EIS did not include this alternative, but the Service later added it to the second draft EIS. The Service convened a multi-stakeholder subcommittee of an existing advisory committee that provided input, and the final EIS included many features of the outside alternative.
NEPA Lesson: The NEPA process provides an opportunity to take a fresh look at current practices when revisions are being considered.
The Point Project, Klamath National Forest – Forest Service
Issue: Public opposition to a logging plan restarts NEPA process
NEPA Process: A court ruling halted a Forest Service plan to log and sell old-growth trees and replace them with young fiber plantations, a common practice in the past but one with potentially great environmental impacts. The Service developed a new plan to thin small-diameter trees and to use controlled burning to reduce wildfire risk. During the NEPA process for the new plan, the Service worked more closely with concerned local groups to address their concerns. The resulting plan both preserved natural forest processes and protected the community from wildfire.
NEPA Lesson: The NEPA process facilitates the identification of innovative solutions that are sensitive to site and community needs.
Changing a Highway to a Parkway, and a Road to a Multi-Modal Transportation System – Federal Highway Administration and Army Corps of Engineers
Issue: Highway project subject to numerous lawsuits
NEPA Process: A draft EIS was issued to address the issuance of permits for a portion of a state-proposed highway. Several citizen groups and state and Federal agencies, including the Environmental Protection Agency and the Fish and Wildlife Service, criticized the draft EIS on multiple grounds. Although the final EIS made changes to address these concerns, a coalition of environmental and transportation advocacy groups filed suit and won. As a result, the parties worked together to combine the best aspects of the state’s proposal and the public’s ideas while still fulfilling the state’s intended purpose.
NEPA Lesson: Although agencies should strive to avoid litigation under NEPA, it can result in an improved outcome by allowing the parties to better appreciate the merits of each other’s positions.
West Alsea Landscape Management Project – Forest Service
Issue: Planning a habitat restoration project
NEPA Process: Nearly a year before the formal beginning of the scoping process, the Forest Service began reaching out to a local organization whose work was concentrated on the watershed area encompassed within the project. The Service held field tours and meetings both to provide information to and solicit input from the group and others. The Service incorporated these suggestions and concerns into the proposed action before scoping and before the draft EA was published for comment. This early involvement of the public led the Service to consider alternatives to the proposed action and improvements to the design criteria that it might not have considered otherwise and resulted in a final EA that enjoyed broad public support.
NEPA Lesson: Interactions between agencies and stakeholders before beginning the NEPA process can improve the success and efficiency of the subsequent process.
Download the Report
The report is available as a free download at the ELI website at www.eli.org . (The story of NEPA review for the Cerro Grande Fire at the LANL site is told on page 1 of the June and September 2000 issues of LLQR; the Moab EIS is covered in June 2005 on page 8 and in September 2005 on page 10; the tritium decision, in 1992, predates LLQR.)