Don’t undermine local voices in environmental decisions

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Poll after poll has shown that a large segment of the electorate supported President Trump precisely because he was so unacceptable to elites. These voters believe, with some justification, that elites tune out their voices. Voting for President Trump, and supporting him despite his difficulties, is these voters’ way of demanding to be heard.

{mosads}How ironic it is, then, that some Republicans who benefited from this disaffection are seeking to eviscerate one of the few federal laws that assures ordinary people and small businesses a voice before the government takes action that could radically impact their lives. The National Environmental Policy Act (NEPA), on which the House Committee on Natural Resources held a hearing Wednesday, is best-known for its role in protecting vulnerable wildlife and the cleanliness of our air and water. But it is also a vital citizen empowerment statute.

No one doubts the importance to a manufacturing-dependent community when a factory shuts down. In the many communities whose economies depend on recreation and tourism, precisely the same concerns apply when a logging or drilling project threatens to despoil the forests or beaches that bring visitors to their areas.

Cities and small businesses bristle when the federal government imposes unfunded mandates upon them. Indeed, the Supreme Court has prohibited federal authorities from “commandeering” local officials. Yet very much the same effect is achieved when logging increases run-off that contaminates local water supplies and forces communities to build expensive water treatment plants.

Without NEPA, these decisions would be made entirely by federal agencies and industry: local communities would find out too late to prevent the damaging projects.

NEPA does not assure that local communities’ views will be honored, but it does provide them with several key rights. First, it requires a clear public statement of what important projects are being planned before the decision to proceed has become irreversible. Second, it requires the solicitation of public input that can highlight harmful effects that the project’s proponents might prefer to sweep under the rug. And third, the law requires consideration of less-disruptive alternatives rather than manipulated take-it-or-leave-it choices. Above all, NEPA ensures transparency and voice.

Yet rather than embracing NEPA, we are seeing a steady onslaught of efforts to weaken or destroy it. Several bills, for example, propose expanding “categorical exclusions” from NEPA review; the timber industry successfully buried some in the recent omnibus appropriations bill.

Agencies originally created categorical exclusions to speed approval of projects that could not plausibly have deleterious environmental consequences. No one needs to puzzle over the impact of mowing the grass on the National Mall or painting administrative buildings.

Now, however, legislation is creating categorical exclusions to cover major projects that can devastate local communities and sensitive wildlife habitat. This has nothing to do with efficiency: it is simply allowing federal officials and industry to decide on projects without listening to local communities or small businesses.

Other pending proposals would weaken NEPA’s requirement to consider alternatives. This allows proponents of a necessary or economically important project to hold it hostage to a local community’s acquiescence in serious harm. Under current law, environmental reviews can expose ways in which the community can get its project, industry can make money, and the worst negative side-effects can be avoided. This is just the sort of pragmatic, non-ideological problem-solving that voters demand of Washington – so often in vain.

Typical of the current over-the-top anti-NEPA rhetoric is the House Natural Resources Committee’s hearing on “weaponizing” NEPA. Signaling a new aggressiveness of elites whose plans NEPA scrutinizes, the Heritage Foundation recently called for repealing the law outright. NEPA’s critics assert that NEPA leads to delays and lawsuits. These claims have been refuted repeatedly.

The key point to remember is that NEPA stops the cover-up, not the project. If the agency gives the local community the chance to speak out about a project and then candidly acknowledges the harms it will do, NEPA does not stop the agency from going ahead with the project anyway. In that case, no NEPA lawsuit would go anywhere. Occasionally NEPA reviews expose other illegalities in a project, but it is hardly grounds for condemning NEPA that it prevents agencies from breaking the law in peace.

Even before the recent legislative onslaught, 95 percent of government actions fell under categorical exemptions from NEPA review. Only one percent required full environmental impact statements. NEPA regulations press agencies to expedite reviews, to coordinate with other required reviews, and to solicit community input early so that reviewers can quickly focus on the concerns that really matter.

Project proponents love to blame NEPA for project delays. That sounds a lot better than admitting that the sponsors failed to line up financing, that they could not agree on a project design, or that the reviews showed that the project would have devastating impacts on nearby communities.

Rather than trying to silence local communities, we should be working to strengthen NEPA. Like the democratic debate it fosters, NEPA is not always pretty but it plays an indispensable part in our civic life.

David A. Super is a professor of law at Georgetown Law. He also served for several years as the general counsel for the Center on Budget and Policy Priorities.

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