Tom's Turn: Notes from our Senior Editor

NEPA Under Fire

August 15, 2005

The National Environmental Policy Act, written and championed by the late Senator Henry M. Jackson of Washington and shepherded through the House by John Dingell of Michigan, is our most comprehensive environmental law. Congress approved it in 1969; President Nixon signed it on New Year's Day, 1970. It came in response to surging interest in the environment on the part of the public that would lead to the first Earth Day, April 22, 1970. It was a fine example of Tip O'Neill's political advice: "Find out where the parade is headed, then get out in front."

But it was much more. NEPA requires the federal government to predict the environmental impact of projects it approves, pays for, or constructs. It requires agencies to look for alternate ways to achieve the same result with less impact. And, maybe most importantly, NEPA is about democracy. It requires that the public be given a major role in the process: the opportunity to attend hearings, submit comments, and make its feelings known. It is also about having an informed public, requiring the agencies to share important information to educate the public, such as the alternatives that might avoid or lessen the impacts of a potential decision. Baby NEPAs have been enacted in many states.

Some had the sense when NEPA became law that it was a grand gesture that might have little effect. They were wrong. The first suit under the brand new statute was brought by Earthjustice (then Sierra Club Legal Defense Fund) co-founder Don Harris on behalf of the Sierra Club. It demanded an environmental study before the government allowed the Gila River in New Mexico to be turned into a concrete ditch. The project was never approved. The next big case, brought by Jim Moorman, the first executive director of this organization, stopped the Alaska pipeline for two or three years and resulted in a vastly safer project. (Congress eventually stepped in and overrode NEPA, with Spiro Agnew casting the deciding vote in an evenly divided Senate.)

Over the years, NEPA has been one of the most important tools available for protecting communities and our environment, having stopped scores of ill-considered projects and lessened the impact of scores more. In the process, not surprisingly, the law has engendered powerful enemies among land developers, miners, ranchers, loggers, and others who profit from public resources and who find NEPA's requirements an annoying impediment to their activities.

Now, one of the anti-NEPA forces' staunchest allies, Congressman Richard Pombo (R-CA), chairman of the House Resources Committee, has launched a NEPA Task Force, Chaired by Rep. Cathy McMorris (R-WA), to hold a series of hearings around the country aimed at gathering ammunition that can be used to "improve" -- make that eviscerate -- this key law. Pombo recently told the National Mining Association Board that his top priority was "reforming" NEPA. Makes you wonder why he is spending so much time trying to gut the Endangered Species Act.

To date, there have been four such hearings, in Spokane (WA), Show Low (AZ), Nacogdoches (TX), and Rio Rancho (NM). Two more are planned for somewhere in the Mid-Atlantic and Southeast. The pattern is clear. Late notice, a token environmentalist or two, perhaps one or two state bureaucrats, and a solid phalanx of people from oil companies, timber companies, construction companies...you get the picture. The task force will issue its report this fall that will recommend "improvements" for NEPA, setting the stage for legislative action next year.

Tom Turner, Senior Editor
yourturn@earthjustice.org