Critics Challenge NEPA ‘Weaponization,’ Extensive Permitting Delays
The National Environmental Policy Act has been “weaponized” through decades of expansive mission creep and the imposition of costly litigation that has delayed and deterred resource and infrastructure development throughout the United States, according to a hearing today in the House Natural Resources Committee.
The nearly half-century old environmental law could be streamlined, environmental reviews applied consistently, and unnecessary review documentation reduced, according to supporters and critics of the NEPA process at the hearing.
Rep. Rob Bishop (R-Utah) opened the hearing calling for a “de-weaponization” of the NEPA review process that would minimize “bad faith litigation” brought under the environmental statute.
“The National Environmental Policy Act, a law that has been interpreted and administered far differently than Congress intended when it was created in the 1970s,” Bishop told the committee. “It shows what happens when we write vague and ambiguous language that can be defined not by Congressional intent but by litigation and courts and ad hoc decision-making of agencies operating out of a fear of the next lawsuit.”
It has led to “perverse outcomes for agencies, the environment, and taxpayers,” according to the House Majority Committee agenda.
James Coleman, an assistant professor at the Dedman School of Law at Southern Methodist University, opened his testimony detailing how NEPA’s review—which he calls “broken”—is harming the country’s “new energy renaissance.”
“The National Environmental Policy Act environmental review process is broken. The average time to complete an environmental impact statement under the Act is now over five years,” Coleman wrote in his prepared remarks. “Whenever an investor considers building U.S. infrastructure that would require a federal permit and impact statement, he or she must consider whether it is worth waiting five or more years. Will markets change over that time? Will the permit be further delayed by court challenges? Would it make more sense to invest in another country?”
Those considerations are hindering development and the expansion of U.S. energy markets, according to Coleman.
“Innovative U.S. companies have discovered ways of producing natural gas, oil, and renewable power far more cheaply. But U.S. consumers and producers will only benefit from these new, cleaner sources of energy if they can be connected to markets with new pipelines and power-lines. Across the country, new energy transport facilities are waiting for federal permits to unlock the benefits of America’s new energy renaissance,” Coleman added.
The U.S. NEPA process are “simply unreasonable” compared to other countries whose reviews generally take less than two years. That includes Canada, Coleman pointed out, which has recently proposed a 300 day completion goal for environmental reviews even while expanding the scope of the assessments.
“So far the environmental reviews are just getting longer,” Coleman told the committee. “Under President Bush the average review took three-and-a-half years. By the end of President Obama’s term, the average review took more than five years. That’s the average review for projects complete in 2016.”
Coleman estimated that a project launched today would likely see a review process of at least 6 years, and perhaps even longer.
Agencies looking to avoid potential lawsuits under NEPA are forced to try to add to their reviews unnecessarily, adding wasteful time and resources in a superfluous attempt to head off challenges, Coleman said. “If I [the agency] don’t want my analysis overturned, I better gild the lily.”
Coleman also said there should be a cut-off for NEPA legal challenges and no longer enforceable, adding to delays.
“NEPA was supposed to be a procedural requirement, not a standard for whether projects are approved,” Coleman said.
An expansive mission or unnecessary padding to skirt litigation is adding to the cost and time considerations for private land owners and companies looking to develop resources, but also for investors and infrastructure projects that have no resource development component.
“No other country has environmental reviews that average over 5 years,” he said. “I think it is very possible to set some time limits for NEPA reviews that allow us to consider environmental consequences of federal approval, but don’t do so much to harm the United States’ position for investors who are thinking about investing in major infrastructure projects here.”
“The reality is you have a very good idea of what the environmental consequences are going to be after a year,” Coleman added, and any additional information gleaned will face diminishing returns that does not strike a balance in analysis, and leads to the type of “gold-plating” he criticized earlier in the hearing.
Melissa Hamsher, an engineer and Vice President of Eclipse Energy Resource Corporation, detailed the NEPA headaches her company endured when trying to obtain an application for permit to drill for federal subsurface minerals on an existing well-pad located on adjacent private property that already was permitted by the state of Ohio.
This led to the permitting agency, the Bureau of Land Management, behaving in an arbitrary and capricious manner and reversing course on a permit, in her estimation, based on the threats of litigation by environmental activists.
“Initially we thought we qualified for a categorical exclusion due to the fact that it was a subsurface parcel with no federal surface impacts,” Hamsher told the committee. “When some of the environmental NGOs came and put a suit against the BLM for leasing the federal minerals, BLM changed their mind and then wanted to do a full-blown environmental review.”
In her written testimony, Hamsher offered a glimpse of the multi-year process that is still ongoing. “Since submitting our Application for Permits to Drill (APD) in July , Eclipse has faced numerous procedural roadblocks from BLM and unreasonable agency requests that have significantly delayed development and negatively affected our planned drilling programs. Multiple layers of federal regulation, the direct result of BLM inserting itself into this process, have delayed this project for many months and we do not have a timeline for the process’s conclusion.
That process began more than five years ago, in 2012, when the company first submitted Expressions of Interest (EOIs) on parcels in the Wayne National Forest in Ohio. An October 2016 BLM Finding of No Significant Impact (FONSI) led to the sale in an online auction on December 13, 2016.
Though Eclipse Resources successfully won parcels in the December auction, they did not receive title for the parcels until the end of May 2017. “This well would be drilled horizontally, more than a mile beneath the surface from the 2016 well pad previously constructed on private land – in accordance with all state regulations. Since we are utilizing horizontal drilling methods, the wells would have no surface impact to the Wayne National Forest,” Hamsher wrote. With no federal impact on the surface, her company believed it would be eligible for a categorical exclusion.
BLM used a nexus to federal minerals to trigger an environmental review that Hamsher believed “came shortly after a lawsuit by environmental non-governmental organizations.”
Rather than needing a duplicative federal environmental review to complete the permitting process, Hamsher argued that state primacy and state permitting—already concluded—should waive further, onerous review.
“States have primacy over development of minerals on private property. In accordance with Ohio regulations, Eclipse Resources had already conducted the necessary administrative and environmental reviews, meeting Ohio’s requirements, and received all relevant permits. Still, BLM deemed it necessary to conduct a full environmental assessment on private land – a requirement that Eclipse, and its landowners, have fully met,” Hamsher wrote.
“There’s a misconception that we’re against environmental review,” Hamsher told the committee. “We’re not against environmental reviews; it is the weaponization of NEPA itself that changes BLM’s mind.”
“We’ve had robust environmental reviews as we’ve been going along,” Hamsher added. “The states have requirements that are quite robust, and we’ve met all of those.”
Rep. Mike Johnson (R-La.) asked if the “bulletproofing” improved the “quality of the review in any way, or merely build a thicker and thicker shield against litigation.”
“It does not,” Hamsher responded.
Horst Greczmiel, former Council on Environmental Quality member and later the Associate Director of NEPA Oversight at CEQ, agreed that the push for “bulletproof” environmental impact statements often produced “excessive documents” that were unnecessary.
“In my experience there are indeed excessive documents, but it is not required by courts. Rather it comes from agencies “throwing in the kitchen sink” instead of focusing their attention on the issues that matter,” Greczmiel wrote.
Greczmiel, who called NEPA the “environmental Magna Carta” in both his written testimony and comments at the hearing, said better training on the ground at CEQ would improve matters. “Once they recognize they don’t need to throw in the kitchen sink but focus their reviews on the issues that really matter, the document comes way down in size and becomes defensible as well.”
“The court is not going to require and hasn’t required in the past that agencies examine issues which aren’t going to be potentially significant or important,” Greczmiel.
He rejected the notion that NEPA was the source of significant delays, however.
“The perception that compliance with NEPA causes significant delays in approvals of large numbers of proposed actions is simply wrong,” Grieczmiel wrote. “Experience taught me that NEPA is not usually the cause, and that delays do not occur in a large number of NEPA reviews. A multitude of factors, other than NEPA, can affect the timing of federal project delivery,” he added.
Grieczmiel said lack of funding, changes in the design or planning processes, or inadequate staff capacity to implement or even oversee the NEPA process can slow the process, along with “local controversy or local opposition to a project, or delays in other (non-NEPA) permitting or approval processes at the federal, state, tribal, or local level.”
Dr. Laura Watt, a Professor of Geography at Sonoma State University, and a self-described “life-long Democrat and dedicated environmental studies scholar” said that while she did not seek to undermine NEPA, a discussion of the fairness of the law and an examination of its inefficiencies would be consistent with the spirit of collaboration and an assessment of the fairness of NEPA application by federal agencies.
This included Point Reyes National Seashore, a subject Watt has studied and written about extensively.
“[S]ince 2000, NEPA review has consistently been applied to agricultural lands in cases where no land use change would occur, merely a continuation of existing use, and has not [emphasis in original] been conducted for instances of removing agricultural or maricultural use. These are concrete examples of an agency applying NEPA inconsistently when it sees fit, apparently on the basis of whether it likes a particular program or project,” Watt wrote.
The failures Watt outlined included “failure (continuing to today) to update the 1980 General Management Plan (despite completing a Draft GMP in 2010 that was never released to the public) to provide on over-arching vision for the Seashore’s management; failure to manage and control the (re-introduced) tule elk population so that it does not damage ranch fencing and infrastructure, and threaten the organic certification of many of the ranches; and pushing several permitees to discontinue ranching and accede to the cancellation of their permits, resulting in serious degradation of historic buildings and increases in fire hazard from unmanaged pastures being taken over by invasive brush and weeds.”
A lack of a general management plan, Watt argued, was the source of a lawsuit brought by the Center for Biological Diversity (CBD) and other groups in 2016.
“As I wrote on the last page of my 2017 book: ‘[W]hen absolutist environmental organizations sling lawsuits at the NPS that explicitly aim to end ranching at Point Reyes, they are bringing the legal equivalent of the rifles and threats of the Bundy militants to the local community,’” Watt said. The CBD lawsuit resulted in a Settlement Agreement, with the National Park Service to study at least three alternatives for ranching, “all of which result in the further reduction or elimination of ranching.”
The timeline for the settlement agreement is prolonged– until July 2021 to complete an amendment to the general management plan and the associated EIS.
While Watt maintained her strong convictions on the necessity of environmental review, she also told the committee, “I also want to advocate for the need for consistency in application of that review. It cannot scrutinize at one level here, and an entirely different one there. Its rigor—indeed, whether it is done at all—cannot merely turn on whether the lead agency ‘likes’ a project.”