Western Official, Infrastructure Experts Call For Environmental Analysis Reforms, States As Co-Regulators
Congress should revisit the landmark environmental regulations initiated by the National Environmental Policy Act if it wanted to fix the nation’s crumbling infrastructure and help the environment, a panel told the House Natural Resources Committee at an oversight hearing today.
A Wyoming county commissioner, a national infrastructure expert, and a union representative from the construction industry told members of the House committee that the effects of NEPA, signed into law in 1970, had “metastasized” into permitting “bottlenecks” that raised costs, drew excessive litigation, and imposed significant environmental harm on projects of all sizes, especially in the West, undermining the legislation’s original intent.
James Willox, a Converse County commissioner and representative of the Wyoming County Commissioners Association, told the committee that NEPA’s mission had “mushroomed” beyond its original intent.
“What was once a helpful look at proposed actions has metastasized into a grotesque perversion of Congressional intent whereby agency officials are forced into years of analysis and reams of paper designed to fend off litigation instead of making sound, informed policy decisions,” Willox wrote in prepared testimony.
“This has real consequences for my county, for Wyoming, and for all of the West. The length of time it takes for the federal government to issue Records of Decision on major oil and gas projects is well-plowed ground in this committee,” Willox said.
Western Wire has covered the extensive oil and gas permitting delays on federal land for months.
Willox cited several projects in western Wyoming that have been stuck in the planning and environmental impact stages for between four to eight years.
“The delays are costly to the project proponent, but also are a burden on local economies and government services,” Willox said. Willox described minor projects, like transmission lines, that take multiple 90-degree turns to avoid federal land “so they don’t have to go through the process and the cost of the shortest, most reasonable route that would have the least impact on the environment.”
Willox suggested that Congress revisit what constitutes a federal nexus and allow counties to become “co-regulators” in the permitting process.
“Counties, as units of local government, should be afforded great deference by land managers in the federal government,” said Willox. “We agree with the Western Governors Association that states and local governments are not merely ‘stakeholders,’ but rather co-regulators established by Congress.”
“In 1969, NEPA was originally designed as a tool to assess the impacts of government actions on the environment. Unfortunately, today it has become a sweeping regulatory framework that does the exact opposite,” Chairman Rob Bishop (R-Utah) said. Court orders and executive branch actions, Bishop said, were insufficient to address NEPA shortcomings, and Congress should look to reconsider the law’s parameters.
“We can both better protect the environment and allow for thorough review and processing of critical economic, energy and infrastructure activities in a timely manner. These concepts are not mutually exclusive. But it simply won’t happen unless Congress acts to clarify NEPA’s intent, scope and limitations,” Bishop added.
Philip Howard, Chairman of Common Good, told the committee that NEPA added permitting delays that required unnecessary analysis and, in some cases, doubled the cost of projects to taxpayers. But more importantly, he added, the excessive environmental reviews triggered by NEPA hurt the environment by delaying necessary upgrades and modifications to the nation’s infrastructure, subverting the law’s main objective.
“These delays are costly and, often, environmentally destructive,” Howard said, driving project “bottlenecks” at the permitting stage. In his prepared testimony, Howard went further. “The effect, paradoxically, is that environmental review often harms the environment. Lengthy environmental reviews typically prolong bottlenecks and other inefficiencies which cause pollution,” he wrote.
“There’s broad agreement on the need to expedite the entire process by which infrastructure gets approved, including the environmental process,” he told the committee, with bipartisan support. Howard told the committee that the statute “should be made more effective, not less effective.”
Howard said NEPA “has evolved into something that no one intended” as it now “obscures the important facts in mountains of detail.”
“It’s become an academic exercise of ‘no pebble left unturned,’” he said. According to Howard, public accessibility is stymied by lengthy reports, as “the density of these reports is driven by fear of litigation.”
“The fear of litigation, according to former EPA general counsel E. Donald Elliott, probably accounts for 90 percent of the extra detail. People are scared. It’s a form of ‘defensive medicine,’” Howard said.
Howard told Rep. Paul Gosar (R-Ariz.) that the “original purpose has been undermined by this form of implementation that really makes it inaccessible to the public and not practical for reasonable decisions.” According to Howard, the litigation shifts power to opponents.
Howard’s recommendations to the panel included a permitting process that lasts no longer than two years with enforcement power to keep on schedule; court reviews only for serious misstatements or emissions in the environmental impact statements; and the ability to accelerate those projects with a “net positive environmental impact.”
Mike Bridges, a Washington State Building and Construction Trades Council Executive Board member and union representative, told the committee that “significant permitting delays” under NEPA review threatened two union-backed projects in Washington, billions in private capital investment, and thousands of jobs.
“The seemingly endless and arbitrary regulatory process in Washington State will discourage future projects that would employ members of the Building Trades and my community,” Bridges said.
“Rather than functioning as a useful tool to educate agency decision-makers of the environmental pros and cons of a proposed project and to solicit input from the public as Congress intended, NEPA has been used to protract and impede agency officials from making a sensible permit decision in a reasonable amount of time,” Bridges said. “I have testified at multiple public hearings across Washington State over a period of 5 years and yet, the Corps of Engineers has still not completed its environmental review.”
Bridges told the committee that the environmental review process has been politicized, “hijacked by activists seeking to deny projects that don’t align with their political agendas.”
“I witnessed singing grandmothers, people dressed as their favorite endangered species, and other theatrical antics designed not to inform agency officials, but to publicly protest the project,” Bridges said. He said activists were routinely bussed in from out-of-state, and flooded federal officials with form letters from national environmental organizations.
Bridges rejected the notion that a review of NEPA was intended to end the regulation.
“I am not here today to encourage deregulation. The Building Trades support a thorough permitting process, but that process needs to adhere to the actual regulatory requirements and follow a reasonable timeline,” Bridges concluded.
“NEPA itself was never intended to be an obstructionist part of our infrastructure nor building of any other thing. But it has been used as that,” Rep. Don Young (R-Alaska) said, saying the law should be “streamlined.”
“NEPA should not be used to slow down and impede development because it does not protect the environment. And that’s really what we should be talking about,” Young said.