[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
THE ROLE OF NEPA IN THE
MID-ATLANTIC STATES
=======================================================================
OVERSIGHT FIELD HEARING
before the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
Saturday, September 17, 2005, in Norfolk, Virginia
__________
Serial No. 109-30
__________
Printed for the use of the Committee on Resources
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______
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COMMITTEE ON RESOURCES
RICHARD W. POMBO, California, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska Dale E. Kildee, Michigan
Jim Saxton, New Jersey Eni F.H. Faleomavaega, American
Elton Gallegly, California Samoa
John J. Duncan, Jr., Tennessee Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland Solomon P. Ortiz, Texas
Ken Calvert, California Frank Pallone, Jr., New Jersey
Barbara Cubin, Wyoming Donna M. Christensen, Virgin
Vice Chair Islands
George P. Radanovich, California Ron Kind, Wisconsin
Walter B. Jones, Jr., North Grace F. Napolitano, California
Carolina Tom Udall, New Mexico
Chris Cannon, Utah Raul M. Grijalva, Arizona
John E. Peterson, Pennsylvania Madeleine Z. Bordallo, Guam
Jim Gibbons, Nevada Jim Costa, California
Greg Walden, Oregon Charlie Melancon, Louisiana
Thomas G. Tancredo, Colorado Dan Boren, Oklahoma
J.D. Hayworth, Arizona George Miller, California
Jeff Flake, Arizona Edward J. Markey, Massachusetts
Rick Renzi, Arizona Peter A. DeFazio, Oregon
Stevan Pearce, New Mexico Jay Inslee, Washington
Henry Brown, Jr., South Carolina Mark Udall, Colorado
Thelma Drake, Virginia Dennis Cardoza, California
Luis G. Fortuno, Puerto Rico Stephanie Herseth, South Dakota
Cathy McMorris, Washington
Bobby Jindal, Louisiana
Louie Gohmert, Texas
Marilyn N. Musgrave, Colorado
Vacancy
Steven J. Ding, Chief of Staff
Lisa Pittman, Chief Counsel
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
------
TASK FORCE ON IMPROVING THE
NATIONAL ENVIRONMENTAL POLICY ACT
CATHY McMORRIS, Washington, Chairwoman
TOM UDALL, New Mexico, Ranking Democrat Member
Ken Calvert, California George Miller, California
George P. Radanovich, California Edward J. Markey, Massachusetts
Chris Cannon, Utah Frank Pallone, Jr., New Jersey
Jim Gibbons, Nevada Grace F. Napolitano, California
Greg Walden, Oregon Jay Inslee, Washington
Rick Renzi, Arizona Mark Udall, Colorado
Stevan Pearce, New Mexico Raul M. Grijalva, Arizona
Henry Brown, Jr., South Carolina Jim Costa, California
Thelma Drake, Virginia Nick J. Rahall II, West Virginia,
Louie Gohmert, Texas ex officio
Richard W. Pombo, California, ex
officio
------
C O N T E N T S
----------
Page
Hearing held on Saturday, September 17, 2005..................... 1
Statement of Members:
Drake, Hon. Thelma, a Representative in Congress from the
State of Virginia.......................................... 2
McMorris, Hon. Cathy, a Representative in Congress from the
State of Washington........................................ 1
Statement of Witnesses:
Besa, Glen, Appalachian Regional Staff Director, Sierra Club,
Richmond, Virginia......................................... 30
Prepared statement of.................................... 33
Holloway, Alverce, Jr., Pulp and Paperworkers Council Member,
International Brotherhood of Firemen and Oilers, Local
#176, Franklin, Virginia................................... 8
Prepared statement of.................................... 9
Kelman, Gary F., C.E.P., President, National Association of
Environmental Professionals, Bowie, Maryland............... 16
Prepared statement of.................................... 17
Shafer, John H., Manager, Sustainable Natural Resource
Practices, NiSource Corporate Services Company, on behalf
of the Interstate Natural Gas Association of America,
Lafayette, Louisiana....................................... 10
Prepared statement of.................................... 12
Spainhour, Charles J., Corporate Manager of Environmental
Services, Vulcan Materials Company, Birmingham, Alabama.... 26
Prepared statement of.................................... 28
Stiles, William A., Jr., Vice President, Wetlands Watch,
Norfolk, Virginia.......................................... 36
Prepared statement of.................................... 38
Wagner, Hon. Frank W., Senator, Seventh District, Senate of
Virginia, Virginia Beach, Virginia......................... 4
Prepared statement of.................................... 6
OVERSIGHT FIELD HEARING ON THE ROLE OF NEPA IN THE MID-ATLANTIC STATES
----------
Saturday, September 17, 2005
U.S. House of Representatives
NEPA Task Force
Committee on Resources
Norfolk, Virginia
----------
The Committee met, pursuant to call, at 1:00 p.m., in the
Ted Constant Convocation Center at Old Dominion University,
Norfolk, Virginia, Hon. Cathy McMorris [Chairwoman of the Task
Force] presiding.
Present: Representatives McMorris and Drake.
STATEMENT OF HON. CATHY McMORRIS, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF WASHINGTON
Ms. McMorris. Good afternoon. The hearing will come to
order. I would like to welcome everyone, and welcome the
members of the Old Dominion University Navy/Army ROTC Color
Guard, who will post the colors, and then Robert Brown will
lead us in the Pledge of Allegiance. So please rise.
[Presentation of the Colors and Pledge of Allegiance.]
Ms. McMorris. Please help me thank them.
Well, welcome to everyone. We are really pleased to be
here. This is our fifth field hearing of the NEPA Task Force,
the National Environmental Policy Act, and I am pleased that my
fellow Representative, Thelma Drake, would invite us to this
area of the world, and I look forward to hearing from her as
well as everyone here today.
I am Cathy McMorris. I am from Washington State and have
been asked by Chairman Richard Pombo to chair the NEPA Task
Force. This will be our last field hearing, and then we will be
wrapping up our business in Washington, D.C.
Already, we have learned a lot about the NEPA process and
the way that we can make it work better. We have heard from a
broad range of people on what works and what needs to be
improved when it comes to NEPA.
We kicked off our field hearings back in April in Spokane
where we heard about some key transportation projects that have
been stalled because of time and costs. In Arizona, we heard
that NEPA is hurting our ability to keep our forests healthy.
In Texas, we heard that it can take up to 20 years for a
project, whether it is a reservoir, an oil refinery or a power
plant that can or cannot be built. In New Mexico, we heard
about the impact of NEPA on our private lands and ranches.
Farmers, ranchers, small businesses, tribal leaders,
environmentalists and others all have had the chance to share
their ideas and concerns with the Task Force, either in person
or through written comments. We have encouraged that
participation. We have had a website set up from the very
beginning, welcomed e-mails, letters, comments from a host of
people all across the Nation.
Over the past two weeks, Congress has focused on how best
to address the aftermath of Hurricane Katrina. As we work
together to rebuild the Gulf region and deal with record high
energy costs that are hurting our farmers, our families and our
businesses, our Task Force will look at how we can work to make
sure NEPA doesn't impede access to affordable domestic energy,
rebuilding of roads and homes, and managing our Nation's
natural resources.
We all share the same goal of clean air, clean water and a
healthy environment. We want to focus NEPA to ensure sound
environmental decision instead of endless analysis and
litigation. We must protect and enhance our wildlife,
watersheds and communities, and put common sense back into
environmental decisionmaking. NEPA shouldn't become bureaucracy
in action.
In this process, we want to preserve the intent of NEPA,
including the public involvement which is at the heart of this
35-year-old law.
Virginia and other States represented by our witnesses
provide us unique examples of how NEPA works and how it can be
improved. The goal of this Task Force has been to get out of
Washington, D.C., to listen first to the people on the ground
so that we can better understand if NEPA is living up to its
intent.
So it is no secret that NEPA as well as other environmental
laws have caused vast amounts of litigation, in some instances
have stalled important economic development projects, and has
cost taxpayers millions. Nearly every word in NEPA has been
litigated. That, in my opinion, doesn't help our economy, and
it certainly doesn't help our environment.
The question before this Task Force has been ``how can we
do better for our economy and for our environment?''
At this time, I would like to recognize Congresswoman Drake
for her opening statement.
STATEMENT OF HON. THELMA DRAKE, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF VIRGINIA
Ms. Drake. Thank you. Good afternoon, everyone. I would
first like to thank Resources Chairman Richard Pombo and
Chairwoman Cathy McMorris for allowing the NEPA Task Force to
travel to Norfolk, and providing Hampton Roads citizens the
opportunity to participate in this public hearing.
I would also like to thank today's witnesses for their
testimony, Old Dominion University for providing this great
space, and for all of the citizens who have decided to spend
this beautiful Saturday afternoon at a Congressional hearing.
This field hearing provides us with the rare opportunity to
put a local face on decisions made at the Federal level. It is
one thing to discuss the merits of policy from within the
confines of a Congressional committee room and quite another to
bring the debate home. So often you hear of people going to
Washington to get things done. It is refreshing to be able to
say that we have brought Washington back to the local
community.
We are a government of the people, by the people, and for
the people, and therefore, I view today's exchange as an
opportunity to participate in an exercise of democracy in one
of its purest forms.
As we all know, when the National Environmental Policy Act
was signed into law in 1970, it provided a foundation for
environmental policymaking in the United States. As our
nation's first comprehensive environmental law, its purpose is
to help public officials make decisions based on an
understanding of environmental consequences and take actions
that protect, restore and enhance the environment. I believe
that everyone here can agree that such a policy is needed, and
its intent is worthwhile.
When the National Environmental Policy Act is mentioned out
west, heads turn because of this region's unique relationship
with the Federal Government. NEPA is a part of business as
usual, because more than 44 percent of the west is owned by the
Federal Government.
A colleague of ours characterizes it by saying, ``We aren't
just neighbors with the Federal Government. They are the entire
neighborhood.'' As a result, NEPA is understood by many people
and factors into many decisions made out west.
On the East Coast, NEPA can go unnoticed by ordinary
citizens and businesses, because we are not in constant contact
with the law. This may lead people to believe that we do not
care about the implementation of NEPA and the effect it has on
projects having to do with resources production, road building,
and other construction projects. However, that statement could
not be further from the truth.
The recent court case with the OLF in Washington County,
North Carolina, is an example of NEPA working well. We will
hear testimony today from several industries whose interactions
with NEPA can change the way in which they do business.
I think every American can agree that each of these
industries plays a pertinent role in everyday living. The
purpose of this Task Force is to dig deep and learn as much as
possible about this Act as we can.
We have held similar hearings all across America, and we
will be using this information to examine if there are ways to
improve the Act. We must remember that this law impacts many
important sectors of our economy. We need a policy that is
protecting our environment, but also one that is not hindering
our economy.
I look forward to hearing from our witnesses, and I yield
back my time.
Ms. McMorris. Thank you very much.
As everyone recognizes, one of the key elements is public
participation. Today we have invited seven witnesses who
represent broad experience and backgrounds, and we want to hear
from everyone as to their thoughts on NEPA. We encourage your
comments, and so we will be taking all of those comments into
consideration as we move forward.
At this time, I would like to introduce our panel. First is
Senator Frank Wagner. He is from the Seventh District of
Virginia.
Next is Alverce Holloway, proud member of the Pulp and
Paperworkers Resource Council; John Shafer of NiSource, on
behalf of the Interstate Natural Gas Association of America.
Next is Gary Kelman, President of the National Association
of Environmental Professionals. Following Mr. Kelman is Mr.
Spainhour of Vulcan Materials. We also have Glen Besa of the
Sierra Club, and wrapping it up is Skip Stiles of Wetlands
Watch.
Thank you all for joining us today. We appreciate you
taking the time to be here.
It is the policy of the Resources Committee to swear in
witnesses. So at this time, I need to ask you to stand and
raise your right hand.
[Witnesses sworn.]
Ms. McMorris. Let the record reflect, the witnesses
answered in the affirmative.
Before we get started, I need to point out that we have a
time clock here. We have asked each of you to present five
minutes worth of oral testimony. The yellow light will suggest
that it is time to wrap up, and then the red light means that
your time has expired. We will be asking questions following
your testimony.
So we are just going to start and have each of you present
your testimony. Then we will follow it all with the questions.
Senator Frank Wagner, if you would begin, that would be
great.
STATEMENT OF FRANK WAGNER, A SENATOR IN THE GENERAL ASSEMBLY OF
THE STATE OF VIRGINIA
Mr. Wagner. Thank you, Madam Chairman, Congresswoman Drake.
I want to thank you for taking the time from your schedule to
hold the hearings in Hampton Roads. It is indeed an honor to
have you here today.
As this country faces an increasingly severe energy crisis,
it is altogether appropriate that you reexamine the 35-year-old
NEPA laws. Our nation's energy crisis threatens our national
security, our economic stability, and threatens the quality of
our environment. However, I believe the manifestations of our
failure to implement a sound energy policy is being borne by
our constituents every day in sticker shock at the gas pump and
skyrocketing cooling and heating bills.
This problem should not exist. It is solvable. But the
problem can only be solved if we as policymakers provide the
tools necessary to our citizens to solve it.
Let me start by saying that NEPA, as initially implemented,
was a very positive process. Industries, utilities, and the
environmental community and government regulators worked
together to ensure that, as new projects came on line, the
impact to the environment was minimal, and yet allowed the
country to move forward through investments in energy
development, domestic resources, and new technologies. However,
over the decades, NEPA and other policies have evolved into
tools that are being used successfully to block most new energy
projects.
The proof of this lies in our failure to permit new, clean
nuclear electric generation, nuclear power plants, and new
liquified natural gas, or LNG, offload terminals. We have
substantial domestic resources off limits in our country to
development, including clean burning natural gas. Is it any
wonder that we face an energy crisis?
Madam Chairman, we have all been shocked as we have watched
events unfold in the aftermath of Hurricane Katrina. Our
Commonwealth, indeed our entire nation, is assisting in any way
we can in the relief and rebuilding efforts in the Gulf region.
But if there is a silver lining in this cloud, it is the
education of Americans as to the vulnerability, lack of
redundancy and extreme limits that our nation's energy system
is currently operating on.
The entire nation has felt the shock, and they are,
rightfully, demanding solutions. We must not forget this
lesson, and we must correct these intolerable situations.
Let me add one more comment on this terrible storm.
Hurricane Katrina has shown us a glimpse of the future, a
glimpse of where this country is headed in terms of our energy
availability and our energy affordability under our existing
energy policies.
As I mentioned in my opening comments, I believe existing
NEPA laws can and will have a negative impact on the
environment. Let me explain. Even prior to Katrina, the issue
of availability and affordability of home heating products was
an issue. Now it has become a crisis.
Madam Chairman, I have attached an article as part of your
testimony about a firm in Maine written in the Boston Globe,
and if I could read--If I could find it real quickly, I would
read a little quick excerpt from that article. But it says, in
commenting from the proprietor of this facility, ``Now it is
just unbelievable,'' he said. ``I can't keep up with it. High
oil prices have Mainers searching for cheaper alternatives, and
firewood is at the top of the list.''
Madam Chairman, I have attached an article. I can only
assume that this is the case at thousands of locations all over
the country, including New England and the Midwest, no doubt
accelerating in the aftermath of Hurricane Katrina.
One question I have asked myself: What will put more
pollution in the air this winter? Millions of unregulated
fireplaces spewing tons of chemicals and ash into the air, or a
few well regulated and carefully monitored coal burning
utilities? What will produce more pollution, the millions of
unregulated fireplaces or a few offshore natural gas wells
producing hundreds of millions of cubic feet a day of clean
burning natural gas?
I believe, through the well-intentioned efforts of some in
the environmental community, using NEPA laws and other
regulatory blocking actions, the stage has been set for record
air pollution this winter.
More tragic than this are the millions of Americans who
will not be able to afford to heat their homes or will be
forced to decide on whether to pay for food, medicine or home
heating. This is an inexcusable and intolerable condition for
the greatest nation on earth. We must work to alleviate the
short term impact of this situation; but, more importantly, we
must resolve the long term policy mistakes that have driven us
to where we are today.
In order to achieve an optimum condition for the
environment, NEPA must look at the environmental impacts of not
permitting a facility. Let me give you one example.
Much progress has been made in the area of hydrogen fuel
cells. In fact, many predict that we are driven toward--and I
look forward to that day--a hydrogen economy. These fuel cells
can and will power our cars, if we have the capability of
producing hydrogen in far greater quantities and at less cost
than we currently do.
Hydrogen is produced by using electricity to convert water
into hydrogen and oxygen. Our ability to produce electricity in
this country can barely satisfy our current demand, much less
the demands for hydrogen production created by fuel cells.
We will need to increase our electric power generation
capability many times to meet this demand. Then it becomes an
equation. What produces less pollution? We continue on our
present course, that of fuel burning cars, producing noxide and
all the rest of the car emissions, or millions of cars that
were formerly burning gas but are now producing zero emissions
from energy produced by several new coal, nuclear or renewable
generating plants. The answer is (b), which also results in a
much cleaner environment. Thousands of Americans will be
employed, using American energy and American technology to meet
American demand in fuel cells and automobiles.
One can follow this logic train through most of the
nation's energy needs. Unfortunately, NEPA, in my estimation,
as it is currently being used is being misused, and the legal
and regulatory hurdles imposed have made what I have outlined a
new impossibility.
Witness the many attempts of trying to establish renewable
sources of energy--wind generation--in Cape Cod, Massachusetts
and here in Virginia, only to have the permits blocked or the
expenses associated with compliance too great to make an
otherwise worthy project unfeasible. It is no wonder we are in
the current energy plight.
Madam Chairman, I submit we must change this system. We
have done much in Virginia to take a leadership role in
attempting to open our offshore natural gas resources to
development and working on a new energy strategy.
I am sorry. I wasn't even looking at the lights. I read
that. I will yield no time back, and be glad to answer any
questions that you have. Thank you, Madam Chairman.
[The prepared statement of Frank Wagner follows:]
Statement of The Honorable Frank W. Wagner, Senator,
7th District, Senate of Virginia
Thank you, Madam Chairman, Congresswoman Drake; I want to thank you
for taking time from your schedule to hold this hearing in Hampton
Roads. It is indeed an honor to have you here today.
As this country faces an increasingly severe energy crisis, it is
altogether appropriate that you re-examine the 30-year-old NEPA laws.
Our nation's energy crisis threatens our national security, our
economic stability and threatens the quality of our environment.
However, I believe the real manifestation of our failure to implement a
sound energy policy is being borne by our constituents every day in
sticker shock at the gas pump and skyrocketing cooling and heating
bills.
What really makes me angry is that this problem should not exist--
it is solvable. But the problem can only be solved if we as policy
makers provide the tools necessary to our citizens to solve it.
Let me start by saying that NEPA as initially implemented was a
very positive process. Industry, utilities, the environmental community
and government regulators worked together to insure that, as new
projects came on line, the impact on the environment was minimal, yet
allowed the country to move forward through investments in energy
development, domestic resources and new technologies.
However, over the decades, NEPA and other policies have evolved
into a tool that is being used successfully to block most new energy
projects. The proof of this lies in our failure to permit new, clean
nuclear electric generation and new Liquefied Natural Gas, or LNG,
terminals. We have made substantial domestic energy sources off-limits
to development, much of it clean burning natural gas. Is it any wonder
we face an energy crisis?
Madam Chairman, we all have been shocked as we watched events
unfold in the aftermath of Hurricane Katrina. Our citizens and our
Commonwealth, indeed our entire nation, are assisting in any way we can
in the relief and rebuilding efforts in the Gulf region.
But, if there is in any way a silver lining in this cloud, it is
the education of Americans as to the vulnerability, lack of redundancy
and the extreme limits on how our nation's energy system is allowed to
operate. The entire nation felt the shock and they are, rightfully,
demanding solutions. We must not forget this lesson and we must correct
this intolerable situation.
Let me add one comment on this terrible storm. Hurricane Katrina
has shown us a glimpse of the future. A glimpse of where this country
is headed in terms of our energy availability and affordability under
our existing energy policies.
As I mentioned in my opening comments, I believe existing NEPA laws
can and will have a negative impact on the environment. Let me explain.
Even prior to Hurricane Katrina, the issue of availability and
affordability of home heating products was an issue. Now it could
become a crisis.
Madam Chairman, I have attached an article from a Maine newspaper
that details the soaring sales in firewood, the largest demand that the
particular supplier interviewed had ever seen. I can only assume that
this is the case at thousands of locations across the country--no doubt
accelerating in the aftermath of Hurricane Katrina.
One question I have asked myself is, what will put more pollution
in the air this winter? Millions of unregulated fireplaces spewing tons
of chemicals and ash into the air, or a few well-regulated and
carefully monitored coal-burning utilities? What will produce more
pollution, millions of unregulated fireplaces or a few offshore natural
gas wells producing hundreds of millions of cubic feet--a day--of
clean-burning natural gas? I believe through the well intentioned
efforts of some in the environmental community, using NEPA laws and
other regulatory blocking actions, the stage has been set for a record
in worst air pollution ever.
More tragic than this is the millions of Americans who will not be
able to afford to heat their homes or will be forced to decide on
whether to pay for food, medicine or home heating. This is an
inexcusable and intolerable condition for the greatest nation on earth.
We must work to alleviate the short-term impact of this situation. But,
more importantly, we must resolve the long-term policy mistakes that
have driven us to where we are today.
In order to achieve an optimum condition for the environment, NEPA
must look at the environmental impacts of not permitting a facility.
Let me give you one example.
Much progress has been made in the area of hydrogen fuel cells.
These fuel cells can and will power our cars, if we have the capability
of producing hydrogen in far greater quantities and at less cost than
we currently do.
Hydrogen is produced by using electricity to convert water into
hydrogen and oxygen. Our ability to produce electricity in the country
can barely satisfy our current demand, much less the demands for
hydrogen production created by fuel cells. We will need to increase our
electric power generating capability many times to meet the demand.
Then, it becomes an equation. What produces more air pollution? A) We
continue on our present course or B) millions of cars that were
formerly burning gas, but are now producing zero emissions from energy
produced by several new coal, nuclear and renewable generating plants.
The answer is B), which also results in a much cleaner environment.
Thousands of Americans will be employed, using American energy and
technology to meet American demand.
One can follow this logic train through most of our nation's energy
needs. Unfortunately, NEPA, in my estimation, is being misused and the
legal and regulatory hurdles imposed have made what I outlined a near
impossibility. Witness the many attempts of trying to establish
renewable sources of energy--wind generation--in Cape Cod,
Massachusetts and here in Virginia, only to have permits blocked or the
expenses associated with compliance too great to make an otherwise
worthy project unfeasible. It's no wonder we are in this plight.
Madam Chairman, I submit that we must change this system. We have
done much in Virginia, taking a leadership role in attempting to open
our offshore natural gas resources to development and working on a new
energy strategy. But you in the federal government must act to provide
a framework so that our critical energy needs can be met. From the
factory worker to the farmer to the fixed-income retiree trying to keep
his or her house warm, we look to your leadership.
Once again, thank you for the opportunity to speak before you
today. I look forward to answering any questions you may have.
NOTE: The article submitted for the record is copyrighted and has
been retained in the Committee's official files.
______
Ms. McMorris. Thank you very much.
Mr. Holloway.
STATEMENT OF ALVERCE HOLLOWAY, INTERNATIONAL BROTHERHOOD OF
FIREMEN AND OILERS, LOCAL 176
Mr. Holloway. Thank you, Madam Chairman, Congressman Drake.
My name is Alverce Holloway. I am an hourly employee at
International Paper and a member of the Pulp----
Ms. McMorris. Hold the mike a little closer.
Mr. Holloway. Sorry, I apologize. My name is Alverce
Holloway. I am an employee of International Paper and a member
of the Pulp & Paper Resource Council. I am married with two
children and one grandchild.
My paper mill which was built in Franklin and built and
owned by one family, the Camp family, in 1930 has also employed
my father and my brother, with approximately 75 years of
working for the paper mill in Franklin, now owned by
International Paper.
I believe it is a good idea that we are holding a hearing
now on NEPA to allow the Committee to hear different views as
to what is right and what is wrong with NEPA. Let me explain
what the Pulp & Paper Resource Council is.
The Pulp & Paper Resource Council is a national grassroots
labor coalition associated with fiber supply, the Endangered
Species Act, and the environment in a way that promotes
knowledge and political activism so that we may influence
legislation that affect our jobs.
The Pulp & Paper Resource Council is the only national
grassroots labor organization solely dedicated to the
representation of natural resource-based workers. As an active
member of the PPRC, I will help unify the voice of over 1.5
million workers throughout the United States.
In the early 1990s, the extreme environmentalists were
determined to shut down forest industries by using the ESA.
They stated that the spotted owl could not live in new growth
forest. This resulted in many manufacturing industries being
shut down. Thousands of jobs and lucrative tax bases were lost.
We now know that the spotted owl thrives in new growth
forests. However, because the forest industry did a poor job of
explaining our issues, communities and thousands of individuals
and their livelihoods were changed forever. This is why the
PPRC was formed, so that decisions being made by legislators
would be made after hearing our concerns and scientific facts
from within the forestry community.
I want it to be understood that the Pulp & Paper Resource
Council does not want NEPA eliminated. However, based on the
time it was introduced over 30 years ago, changes need to be
made. We feel that NEPA does need to be streamlined and
modernized.
NEPA's intent was to bring a balance to the environment and
industry, but it seems that the message has been lost. NEPA is
being used as a tool to hinder forestry production, just as the
Endangered Species Act and the New Source Review is currently
doing.
The American pulp and paper industry is greatly challenged
by competition of less developed countries with much lower
costs for production for things such as natural gas. Part of my
mill's production is based on natural gas, a fuel that
increased greatly in price in the last year. Higher natural gas
costs can lead to less paper production in Franklin, Virginia,
and cost of fuel--less fuel, less jobs for people like myself.
NEPA has been used by lawyers and environmental groups to
stop and delay natural gas exploration at the expense of
manufacturing workers. The Resources Committee needs to find a
way to minimize litigation which only produces pink slips for
hourly workers.
I would like to reiterate that NEPA is a good program,
providing it is used for its intended purpose. We cannot
continue to let hundreds of acres of timber sales turn into a
three-foot stack of paperwork as a result of ending up in
courts because of litigations.
The forest product industry is an industry under fire. We
face major obstacles every day. We face an uphill battle
because of the cost of growing imports and the strict
environmental laws in the United States.
All we ask for is a level playing field. We ask the Federal
and the State government to help us remain competitive in a
global market. When the companies we work for decide it is no
longer profitable to operate here in the United States, they
will join those others who have chosen to operate out of this
country where there is less restrictions. We need to keep our
manufacturing industries in the United States where we have
environmental laws implemented for the best interest for our
country.
Thank you.
[The prepared statement of Alverce Holloway follows:]
Statement of Alverce Holloway, Jr., Pulp & Paperworkers Resource
Council Member, International Brotherhood of Firemen and Oilers, Local
#176,
Mr. Chairman and Members of the Committee, my name is Alverce
Holloway, Jr. I am an hourly employee at International Paper and a
member of the Pulp & Paperworkers Resource Council (PPRC). I'm married
with two children and one grandchild.
Thank you to the committee for allowing me the opportunity to
testify. I believe that it's a good idea that you are holding a hearing
on NEPA to allow the committee to hear different views on what is right
and what is thought wrong with NEPA.
Let me explain who the Pulp & Paperworkers Resource Council are.
The Pulp & Paperworkers Resource Council is a national grassroots labor
coalition associated with fiber supply, the Endangered Species Act, and
the environment in a way that promotes knowledge and political activism
so that we may influence legislation that affect our jobs. The PPRC is
the only national grassroots labor organization solely dedicated to the
representation of natural resource-based workers. As an active member
of the PPRC, I will help unify the voice of over 1.5 million workers
throughout the United States.
In the early 1990's, the extreme environmentalist were determined
to shut down forest industries by using ESA. They stated that the
spotted owl could not live in new growth forest. This resulted in many
manufacturing industries shut down, thousands of jobs and lucrative tax
bases were lost. We now know that the spotted owl thrives in new growth
forest. However, because the forest industry did a poor job of
explaining our issues, communities and thousands of individuals and
their livelihoods were changed forever. This is why the PPRC was formed
so that decisions being made by legislators would be made after hearing
our concerns and scientific facts from within the forestry community.
I want it to be understood that the Pulp & Paper Resource Council
does not want NEPA eliminated; however, based on the time it was
introduced, over 30 years ago, changes need to be made. We feel that
NEPA does need to be streamlined and modernized.
NEPA's intent was to bring a balance between the environment and
industry, but it seems that the message has been lost. NEPA is being
used as a tool to hinder forestry production just as the Endangered
Species Act and the New Source Review is currently doing.
I would like to reiterate that NEPA is a good program providing it
is used for its intended purpose. We cannot continue to let hundreds of
acre timber sales turn into a 3 ft. stack of paperwork, as a result,
ending up in the courts because of litigations.
Forest product industry is an industry under fire. We face major
obstacles everyday. We face an uphill battle because of the cost of
growing imports and the strict environmental laws in the United States.
All we ask for is a level playing field. We ask federal and state
governments to help us to remain competitive in a global market. When
the companies we work for decide that it is no longer profitable to
operate in the United States, they will move overseas and by the way
some companies already have. We need to keep our manufacturing
industries in the United States where we have environmental laws
implemented for the best interest for our country.
______
Ms. McMorris. OK. Thank you.
We are going to take a quick break.
Ms. Drake. I would just ask Chairman McMorris if we could
take a break just for a moment so we could recognize that ODU's
President, Roseann Runte, is here, and we want to thank her
very much for her hospitality and for allowing this public
meeting to take place. Thank you, Dr. Runte.
Ms. McMorris. And just to make sure that it all seems fair,
we will allow you a little extra time. We will move it to six.
I think we will have enough time to get through everyone in a
timely fashion. Thank you.
Mr. Shafer, please continue.
STATEMENT OF JOHN H. SHAFER, INTERSTATE NATURAL GAS ASSOCIATION
OF AMERICA
Mr. Shafer. Madam Chairwoman, Congressman Drake, it is a
pleasure to be here today, coming up from Louisiana to
represent my company, NiSource, as well as the Interstate
Natural Gas Association of America, INGAA.
Natural gas markets are very sensitive to supply
disruptions, such as the one caused by Hurricane Katrina just
two weeks ago. Even though assessment is preliminary, damage
from the storm to some energy infrastructure could take months
to repair.
Offshore production in the Gulf is gradually coming back on
line, but processing plants on shore are a bottleneck, and may
be out for as long as six months or more. These processing
plants are critical to the supply chain. It becomes more
critical as we look to winter months ahead and increasing
demand.
Underground storage is also vital. About half the natural
gas demand is satisfied on winter peak days by withdrawing
supplies from underground storage reservoirs that have been
filled with extra gas on nonpeak days. The injection of storage
has been slowed, but it is now improving. Any delays in the
establishment in the flow of energy could be very costly.
The recommendations INGAA brings today will not alter the
objectives of NEPA: Diminish environmental protection or lower
any existing environmental quality standards. Some of these
solutions are found in part in the Energy Policy Act of 2005,
at least as it relates to natural gas projects under
jurisdiction of the Federal Energy Regulatory Commission.
INGAA suggests that these solutions should be applied to
all types of energy project reviews under NEPA, not just FERC
approved natural gas projects.
Recommendation 1: Establish a clearly defined lead agency
for each type of proposed project. Eliminate the conflict among
agencies as to who has the lead, and it should be an agency
that has primary responsibility for the approval of the
proposed development project.
Recommendation 2: Allow the lead agency to institute
specific timelines for NEPA reviews. An agency's inaction can
delay and even kill a project. Empower the lead agency to set a
schedule. Establish joint meetings and reviews, and the process
becomes more simultaneous rather than sequential. If a
cooperating agency does not act within the published timeframe,
then their approval is assumed.
Recommendation 3: Ability to enforce a lead agency
deadline. There must be a mechanism that allows the lead agency
to enforce the published schedule. The enforcement must enable
the lead agency to presume that all appropriate and applicable
comments are in when the deadline passes.
Recommendation 4: Creation of a consolidated record for a
NEPA review on all energy projects. There should be only one
NEPA record for review, one environmental impact assessment,
and all permitting decisions drawn from that basis. Allowing
the development of separate NEPA documents is time consuming,
costly, and unfair to the developer and the agencies that
cooperate.
Recommendation 5: Streamline subsequent reviews and permit
approvals for projects managed pursuant to the Pipeline Safety
Improvement Act 2002. This new Act will require significant
excavation activities for inspection and possible repairs of
pipelines. It may even require a large volume of permits. Many
pipelines already have an environmental assessment/
environmental impact study on that facility that may need some
safety work. NEPA should recognize previous studies and allow
pipeline operators to move expeditiously to perform inspections
and repairs. For facilities who have no environmental
assessment or study, NEPA should allow for expedited analysis
of impacts by lead agency and establish a streamlined schedule.
Recommendation 6: Make a ``Team Permitting'' opportunity
available on a voluntary basis. This could be patterned after
the team permitting concept established in the State of
Florida. It would promote early input by all stakeholders.
Under team permitting, a lead agency, cooperators and
others would work with the applicant to achieve acceptable
permit conditions and mitigation. The group would also work
proactively with the applicant to set ``net ecosystem
benefits'' that are pledged and will be furnished as soon as
all approvals are in.
Recommendation 7: Streamline NEPA permit reviews and
approvals by adopting a process similar to the one used
pursuant to the Comprehensive Environmental Response,
Compensation, and Liability Act, CERCLA or Superfund. NEPA
reviews could be managed in a manner similar to the way
projects are handled under CERCLA.
The CERCLA law required EPA or principal responsible
parties to respond to releases of hazardous constituents. In
the beginning, administrative requirements imposed by
jurisdictional agencies were delaying the cleanup of these
sites. Legislation was passed to require EPA to impose all
substantive requirements of existing environmental law, but
exempted those projects from the administrative aspects of
other agencies.
A NEPA lead agency could act much like the EPA and serve as
a place where the applicant for energy projects would seek NEPA
clearance and move forward. An innovative, one-stop shopping
NEPA approach could significantly streamline the process. When
the NEPA review would be complete, it would be deemed that
approvals had been received for all permits necessary to
implement the development.
Let me conclude by thanking the Committee for allowing me
to testify today. I will be happy to answer any of your
questions. Thank you.
[The prepared statement of John H. Shafer follows:]
Statement of John H. Shafer, Manager, Sustainable Natural Resource
Practices, NiSource Corporate Services Company, on behalf of the
Interstate Natural Gas Association of America
Opening Remarks:
My name is John H. Shafer and I reside in Benton, Louisiana. I am
currently employed by NiSource Corporate Services as Manager of
Sustainable Natural Resource Practices. As an energy sector
professional, I have over 35 years of experience in environmental and
regulatory planning and permitting. This experience includes the
siting, permitting and construction of petroleum and natural gas
facilities such as pipelines and terminals. I also served as Assistant
Director of Environmental Policy at the White House in 1993, during
which time I created the President's Council on Sustainable
Development.
NiSource Inc. is a fully integrated energy company and it engages
in natural gas transmission, storage and distribution, as well as
electric generation, transmission and distribution. NiSource operating
companies deliver energy to 3.7 million customers located within the
high demand energy corridor that runs from the Gulf Coast through the
Midwest to New England. NiSource pipelines and distribution
subsidiaries are active in several Mid-Atlantic States such as
Maryland, Virginia and West Virginia. NiSource distribution companies
are experiencing growth in the Mid-Atlantic region and its pipelines
are experiencing opportunities for growth to meet market demand.
NiSource is a member of the Interstate Natural Gas Association of
America (INGAA) and I am pleased to appear here today to represent
INGAA in these proceedings. INGAA is a trade organization that
represents virtually all of the interstate natural gas transmission
pipeline companies operating in the U.S., as well as comparable
companies in Canada and Mexico. Its members transport over 95 percent
of the nation's natural gas through a network of 180,000 miles of
pipelines.
First, I would like to thank you, Representative McMorris for your
leadership in Chairing this Task Force, and House Resources Committee
Chairman Richard Pombo, and the other Task Force Members and the staff
for your willingness to review NEPA and look for opportunities to
improve the environmental review and mitigation process.
Many of you are acutely aware that natural gas markets are
currently in a delicate balance of supply and demand, which is driving
up prices. This tight supply/demand balance makes the natural gas
market even more sensitive to supply disruptions such as the one that
occurred with Hurricane Katrina two weeks ago. Our industry is still
assessing the damage from the storm, and we will clearly be working for
some months on repairs, but I would like to share some initial thoughts
today.
Natural gas pipelines in the Gulf region did sustain some damage as
a result of Hurricane Katrina, although most of the damage was minor
and natural gas deliveries to other regions of the country have largely
continued. However, a number of off-shore production facilities were
damaged, and perhaps most troubling, several key natural gas processing
facilities in the area sustained major damage. While off-shore
production in the Gulf is gradually coming back on line, these
processing plants may be out for as long as six months. Natural gas
processing is critical, especially during cold weather periods, to
ensure that the gas has acceptable quality and does not damage
pipelines and end-use equipment. Getting these processing facilities
back into operation before the winter heating season should be a
priority.
In addition, the nation's natural gas storage has been impacted by
the hurricane. Natural gas storage is a critical component to meeting
winter peak demand; on the coldest days of the year, a given market
area may be meeting 30 to 50 percent of its natural gas demand through
storage withdrawals. Therefore, it's important that gas storage
reservoirs be filled during the fall in order to be ready for winter.
With gas production and processing at reduced levels, however, current
storage injections have slowed, and in fact some storage in the Gulf
region has already been withdrawn in order to meet immediate demand.
This is yet another reason to get pipelines, production and processing
back on line as soon as possible.
As you can see, the delicate balance that exists for the natural
gas industry to meet energy demand in the U.S. is reason enough to
eliminate unnecessary permitting delays for gas infrastructure. Our
economic security often depends on the timely expansion, or repair, of
these energy facilities. In fact, a study completed by the INGAA
Foundation last year, which looked at delays in needed natural gas
infrastructure projects, suggested that a two-year delay in getting
such projects built would cost American consumers $200 billion by 2020.
Let me repeat that: $200 billion by 2020, and that is only for delays,
not project cancellations. I would be happy to provide a copy of this
report to the Committee for the record.
This leads me to the topic of today's hearing, the National
Environmental Policy Act (NEPA). In the 35 years since its enactment,
compliance with NEPA has taken progressively longer and longer for
natural gas projects. We do not, however, propose to alter the
objectives of the NEPA. On the contrary, NEPA remains an important
environmental safeguard, balancing the needs of economic development
with the need to protect environmental quality. Our suggested solutions
deal with the implementation of NEPA, and in particular, the ways
different federal and state permitting agencies should work together
under the Act.
I am happy to report that a number of these solutions were part of
the recently enacted Energy Policy Act of 2005 (Public Law 109-58), at
least with respect to natural gas projects approved by the Federal
Energy Regulatory Commission (FERC). Our association has grappled with
the issue of NEPA compliance for many years, looking specifically at
ways to reduce unnecessary delays and improve cooperation among the
many federal and state agencies that might be reviewing a proposed
project. These suggestions do not alter existing environmental quality
standards. They do, however, increase the level of accountability,
cooperation and efficiency among permitting agencies--hardly an unfair
or unreasonable set of expectations. We hope the Committee will look at
extending these ideas to all types of energy project reviews under
NEPA, not just FERC-approved natural gas projects. Here are our
suggestions:
Recommendation 1--Establish a clearly defined ``lead agency'' for each
type of proposed project.
On any given proposed project for development, there can be
conflict among agencies as to who should take the lead. There does need
to be one lead agency for each type of project though, and direction
from Congress or the Council on Environmental Quality (CEQ) could
resolve such conflict before it arises. For example, Section 313 of the
new Energy Policy Act designates the FERC as the lead agency under NEPA
for all projects requiring an authorization or approval pursuant to the
Natural Gas Act; in other words, all interstate natural gas pipelines,
storage facilities, or LNG import terminals. The lead agency should be
one that has primary responsibility for the ultimate approval of an
activity or project.
Recommendation 2--Allow the lead agency to institute specific timelines
for NEPA reviews.
This recommendation is important to keeping the review process
manageable while providing some time certainty to applicants. While
most agencies are willing to work with the sister organizations in a
cooperative manner, our own experience in the gas pipeline industry is
that some agencies will use inaction as a way to delay and even kill a
project. If the lead agency is empowered to set a schedule, and to
establish joint agency meetings and reviews, then the process becomes
more cooperative and efficient as agencies negotiate face-to-face
rather than from some distance. Here again, Section 313 of the Energy
Policy Act allows the FERC, for pipeline and LNG projects, to set such
a schedule. However, the Act also states that the FERC should
incorporate any existing timeframes any agency might have to reach a
decision on a permit. An amendment to NEPA should establish that the
lead agency has overall authority to establish a time schedule for
review and all cooperating agencies must act within that time frame.
Recommendation 3--Ability to enforce a lead agency deadline.
Ideally, the ability to set a deadline should be coupled with a way
to enforce the deadline, so that agencies take a lead agency deadline
seriously. Several earlier versions of the Energy Policy Act contained
a provision requiring cooperating agencies to either act within the
FERC-approved deadline (for natural gas projects), or else have their
approval ``conclusively presumed.'' Both the Coastal Zone Management
Act (CZMA) and the Clean Water Act contain deadlines for state
enforcement agencies to either make permitting decisions or have their
approval assumed, so the proposals in the energy bill debate weren't
all that unusual. Nonetheless, the Energy Bill Conference Committee
decided to be more conciliatory, by instead allowing an applicant to
appeal an agency permitting delay to the U.S. Court of Appeals for the
D.C. Circuit. We believe there must be a mechanism applicable to all
involved agencies that allows the lead agency to enforce its schedules.
Recommendation 4--Creation of a consolidated record for a NEPA review
and all permitting decisions.
The lead agency should be charged with the responsibility to
develop a consolidated record for the NEPA review and EIS development,
and all permitting decisions required as a result. Once again, this
encourages the various federal and state agencies to work together in a
cooperative fashion to develop a consolidated record. In order to make
sure that agencies take this requirement seriously, Congress should
require that this consolidated record be the record used for all
subsequent appeals or Administrative reviews.
A consolidated record is important. Our industry has found that
some agencies have ``sat out'' on FERC NEPA reviews of proposed
projects, and then subsequently appealed FERC's approval decisions and
attempted to develop a de novo review of all the facts previously
considered by FERC and the cooperating agencies. Developing an entirely
new record, when ample opportunity is given to participate in the
development of the first one, is time-consuming and unfair to all of
the agencies that did participate cooperatively. This consolidated
record requirement is a part of the Energy Policy Act with respect to
natural gas projects; it should be considered for other NEPA approvals
as well.
Recommendation 5--Streamline subsequent reviews and permit approvals
for projects managed pursuant to the Pipeline Safety
Improvement Act.
The natural gas industry is facing a huge amount of work to comply
with the safety regulations codified pursuant to the passage, in 2002,
of the Pipeline Safety Improvement Act. The Act created specific
timeframes for all natural gas transmission pipelines to assess (or
inspect) the integrity of all pipeline located in populated areas. By
December of 2012, all pipelines located in these ``high consequence
areas'' must have a baseline assessment of its integrity. These
inspections, and any subsequent repairs, will require significant
excavation activity, triggering permit requirements. The ability to
obtain the necessary permits, so that this inspection/repair activity
can be completed pursuant to the Congressionally mandated timeframe,
will be critical to the success of the program.
Most of the effected pipelines have already developed an EIS years
ago, as part of any construction or expansion activity. We need to make
certain that the permitting process for the integrity management
program recognizes previous work, and gives pipeline operators some
flexibility to meet requirements that, after all, have been mandated
for safety purposes by Congress.
In the event that a pipeline has work that must be performed
pursuant to compliance with the regulations under the Pipeline Safety
Improvement Act and that particular pipeline segment has never had an
EIS performed on it's facilities, NEPA should allow for expedited
analysis of impacts by the lead agency and the establishment of a
streamlined review schedule for all cooperating agencies that meets the
safety requirements imposed by DOT, OPS, or PHMSA.
Recommendation 6--Make a ``Team Permitting'' opportunity available on
voluntary basis.
This voluntary process, would be one similar to the ``Team
Permitting'' concept employed within the State of Florida, pursuant to
Chapter 403.075, Florida Statutes, for early coordination with
regulatory agencies, local governments, and special interest groups for
development related permitting.
An amendment to NEPA could include a section to establish the
opportunity for a developer to engage a lead agency, other regulatory
stakeholders, and interested parties in an open process in which all
NEPA issues could be identified and dealt with to the satisfaction of
those involved. In this voluntary process, an applicant seeking any
federal permit applicable for NEPA review could enter into a non-
binding agreement with the federal ``lead agency.'' This would be
initiated by the applicant and would be only on a voluntary basis. Once
initiated by the applicant, the lead agency would notify all potential
cooperating agencies of the opportunity to join this collaborative and
advisory ``Team Permitting Group.'' A federal notice of such meetings
of the group would be published and any interested party could join the
review process (this could include any environmental group or other
interested party). A schedule for review and processing of all permits
would be developed by the lead agency and the Team Permitting group and
all milestone dates for processing would be met by the applicant as
well as the agencies involved.
In Team Permitting all permitting agencies and interested parties
would meet together and work simultaneously on the technical aspects of
the proposed development and to reduce the overall total impact of the
project. This would also include any necessary mitigation. This
collaborative effort on the technical aspects of the proposal would
greatly help the various regulatory permitting personnel who too often
work in a silo effect as they assess the impact of the proposed
development and any mitigation that might be required. In order to
enter into this voluntary Team Permitting process, the applicant would
pledge, in the beginning, to do what will be referred to as ``net
ecosystem benefits'' which will be over and above any level of
mitigation assigned by the various permitting agencies. No ``net
ecosystem benefits'' would be performed by the applicant until all
timely permits are issued, required mitigation agreed to by the
parties, in accordance with the schedule agreed to in the beginning by
the Team Permitting Group. Their respective regulatory division will
issue all individual required environmental permits from federal
regulatory agencies, from any state government, as well as any local
government. Again, the agreed to ``net ecosystem benefits'' will not be
performed by the applicant unless all permits are issued in accordance
with the agreed to schedule.
Recommendation 7--Streamline NEPA permit reviews and approvals by
adopting a process similar to the one used pursuant to CERCLA
(or Superfund).
Permitting for projects undergoing NEPA review (especially those
that have an existing EIS) could be managed in a manner similar to the
way in which permits are expedited pursuant to CERCLA. In the early
1980's, Congress faced a similar situation with response actions needed
under the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), commonly known as Superfund. This legislation
required the EPA or potentially responsible parties to respond to
releases of hazardous constituents. During the initial implementation
of CERCLA, it was quickly recognized that Federal, State or local
requirements imposed significant delays to this critical work. To avoid
these delays, legislation was passed to require EPA to impose all
substantive requirements of these rules, but exempted the projects from
the administrative aspects of Federal, State and local requirements.
Natural gas facilities could be sited, permitted, constructed, repaired
and upgraded, pursuant to an amended NEPA that would have language
similar to the language contained in Section 121 of CERCLA.
Under this revised process, during the NEPA review the lead Agency
would act in a manner similar to the role EPA plays in authorizing work
under CERCLA. Applicants would be required to discuss and comply with
substantive requirements of all applicable, relevant and appropriate
requirements (known as ARARs under CERCLA). The public and any affected
Agencies would have an opportunity to comment on all planned work.
However, the approval under NEPA would also constitute approval for all
permits necessary to implement the work. This would greatly streamline
the process to gain approval for needed maintenance or new construction
while still insuring all technical requirements are met.
Let me conclude by thanking the Committee for allowing me to
testify today. I would be happy to answer any questions you might have.
______
Ms. McMorris. Great. Thanks for being here.
Mr. Kelman.
STATEMENT OF GARY F. KELMAN, NATIONAL ASSOCIATION OF
ENVIRONMENTAL PROFESSIONALS
Mr. Kelman. Madam Chairwoman, Congressman Drake, good
afternoon. I am Gary Kelman, President of the National
Association of Environmental Professionals. I appreciate the
invitation to testify before the Task Force.
We have submitted written testimony to the Task Force,
which includes an attachment that addresses interpretations of
NEPA by Federal courts. NAEP is a national professional
organization with approximately 1300 members, thousands of
affiliated professionals with chapters throughout the United
States. NAEP members include professionals with expertise in a
broad cross-section of engineering, scientific, planning,
technical, legal and academic disciplines. Our members work in
and with government agencies at the Federal, State and local
levels, as well as in private practice with contractors and
consulting firms, and also in universities and other academic
positions nationwide.
NAEP members have been involved in implementing NEPA since
its enactment. Such activities have included preparation and
review of NEPA documents, development of training programs for
other NEPA practitioners, and providing expert technical and
policy assistance to both government and private sector
clients.
NEPA and its implementation are frequent topics in our
quarterly journal, Environmental Practice which is published by
Cambridge University Press. A special December 2003 issue was
devoted entirely to NEPA. NAEP welcomes the opportunity to
share with you our collective professional experience with
NEPA.
Our position with regard to NEPA may be summarized as
follows: NAEP supports the environmental analysis process
established by NEPA, including the public's right to
participate in that process. NAEP opposes any revisions of NEPA
that would likely be detrimental to NEPA's established purpose,
policy, and procedures.
NAEP supports and intends to help implement the
recommendations of the CEQ NEPA Task Force for modernizing NEPA
that were made in 2003. NAEP recommends that the Congress
mandate significant increases in staffing, funding, and
training to enable CEQ and the Federal agencies to do more
efficiently and effectively fulfill their responsibilities for
compliance with NEPA.
NAEP believes that it is essential to preserve and maintain
the role of judicial review as the primary external NEPA
compliance mechanism. The best way to reduce NEPA related
litigation is to improve existing NEPA capabilities within the
agencies.
In particular, I would like to emphasize the following:
Many of the allegations raised against NEPA in recent years
stem not from either NEPA but from government agencies having
failed to follow adequately the clear language and intent of
both of these documents. Nothing in either NEPA--in NEPA
requires agencies to take years to complete environmental
studies or to produce multi-volume documents or to spend
millions of dollars to do so.
Furthermore, the record of NEPA litigation shows that in
most of the court cases that agencies have lost, the root cause
has been their failure to perform the basic planning functions
that NEPA requires.
In addition, we strongly recommend that one or more
additional professional positions be established at CEQ to
provide the agencies with more ongoing NEPA related technical
advice, policy guidance, and coordination. At present, only one
professional staff member is assigned this function full time,
and must deal with more than 80 Federal agencies subject to
NEPA. There were as many as six at CEQ in the past. We believe
that additional CEQ oversight can and should help the agencies
to be more efficient and more effective in the conduct of their
NEPA compliance, and should help reduce unnecessary delays,
expense and litigation.
The Task Force should also conduct an evaluation of the
professional staff levels, funding opportunities for training
and advancement, and workloads in the NEPA compliance offices
in the Federal agencies, and should make appropriate
recommendations for improving their capabilities.
In the past several years, many NEPA offices have been
subjected to reductions in both their budget and staff
positions. NAEP believes that these cuts, sometimes up to 50
percent, have contributed to a decline in the quality of NEPA
documents and to unnecessary delays and costs in implementing
the NEPA process.
For its part, NAEP intends to continue working with CEQ and
the agencies to help improve the NEPA process. We would, for
example, be pleased to contribute to a ``Citizens Guide to
NEPA'' and/or to help develop additional administrative
guidance to make NEPA's environmental evaluation and review
process more effective and efficient and less costly and time
consuming.
In conclusion, NAEP has supported and continues to advocate
improvements in the implementation of one of our nation's most
important environmental laws. We are, however, concerned that
any Congressional recommendations for changes in the existing
NEPA process be based on a careful, objective analysis of
facts, rather than on vague allegations of problems that may
result from causes other than the requirements of NEPA.
NAEP's view is that the recommendations we have described
here and in our written testimony should be implemented, and
their effectiveness should be objectively evaluated before
other potentially unnecessary or counterproductive legislative
actions are pursued.
[The prepared statement of Gary F. Kelman follows:]
Statement of Gary F. Kelman, C.E.P., President,
National Association of Environmental Professionals
This statement is submitted to the U.S. House Resources Committee
Task Force on Improving the National Environmental Policy Act (NEPA) on
behalf of the National Association of Environmental Professionals
(NAEP), a national professional organization of approximately 1,300
members; thousands of affiliated professionals; and state, regional and
student chapters throughout the United States. NAEP members include
professionals with expertise in a broad cross-section of engineering,
scientific, planning, technical, legal, and academic disciplines. Our
members work in and with government agencies at the federal, state and
local levels as well as in private practice with contractors and
consulting firms and also in universities and other academic positions
nationwide.
NAEP members have been involved in implementing the National
Environmental Policy Act from the 1970s to the present. Such activities
have included preparation and review of NEPA documents, development of
training programs for other NEPA practitioners, and providing expert
technical and policy assistance to both government and private-sector
clients. NAEP maintains a quarterly professional journal, Environmental
Practice, published by Cambridge University Press, which contains
technical articles, case studies, news, and information. NEPA and its
implementation are frequent topics in the journal; a special December
2003 issue was devoted entirely to NEPA.
NAEP welcomes the Congressional Task Force's interest in reviewing
NEPA and in developing recommendations for improving the way the law
and its regulations are being implemented by the federal agencies and
their state, tribal, and local cooperating agencies. We also welcome
the opportunity to share with you our collective professional
experience with NEPA, the NEPA Regulations of the Council on
Environmental Quality (CEQ), and the practice of NEPA in the agencies.
Our position with regard to NEPA may be summarized as follows:
NAEP's Position on Improving the NEPA Process
1. NAEP unequivocally supports the environmental analysis process
established by NEPA and the regulations of the CEQ, including the
public's right to participate in that process.
2. NAEP opposes any revisions of NEPA or the CEQ regulations that
would likely be detrimental to NEPA's established purpose, policy, and
procedures.
3. NAEP supports and intends to help implement the recommendations
of the CEQ NEPA Task Force for ``modernizing NEPA'' that were made in
2003.
4. NAEP recommends that the Congress mandate significant increases
in staffing, funding, and training to enable CEQ and the federal
agencies to more efficiently and effectively fulfill their
responsibilities for compliance with NEPA.
5. NAEP believes that it is essential to preserve and maintain the
role of judicial review as the primary external NEPA compliance
mechanism. The best way to reduce NEPA-related litigation is to improve
existing NEPA capabilities within the agencies.
NAEP strongly supports the purpose and intent of NEPA, as expressed
in Section 2 and Title I of NEPA itself, as well as in Part 1500 of the
CEQ's NEPA Regulations. The environmental analysis process established
by NEPA was intended as a way to assure our citizens that federal
agencies, before taking actions that could have significant
environmental impacts, would assess those potential impacts, including
reasonable alternatives that might avoid or minimize adverse effects,
and invite public review and comment on the adequacy of the results of
that analysis.
In our experience, NEPA has resulted in thousands of improvements
to proposed federal projects, plans, and programs and has helped to
protect and maintain the quality of our human environment. NEPA's
environmental analysis requirement, first adopted here in the United
States, has proven so beneficial that it has been widely emulated
around the world. Various adaptations of NEPA are now established law
in more than 100 other countries and have also been adopted by the
World Bank and most other multilateral development institutions. Having
a pre-decision, public, environmental impact analysis process is now
considered a key measure of democracy by citizens of many nations.
Few, if any, laws have ever been implemented perfectly or without
controversy. Although Title II of NEPA established the Council on
Environmental Quality and charged it with, among other duties,
overseeing the implementation of NEPA's requirements by federal
departments and agencies, CEQ initially lacked binding legal authority
for its guidance, which meant that compliance with NEPA rested
primarily with the federal courts. This deficiency was addressed in
1978 when CEQ published its Regulations (now codified at 40 C.F.R.
Parts 1500-1508). Most federal agencies, state and local governments,
business leaders, and environmental organizations welcomed the policy
and procedural guidance in these regulations, which clarified the
process and helped restrain inappropriate litigation.
NEPA is Not the Problem
In NAEP's view, many of the allegations raised against NEPA in
recent years stem not from either NEPA or the CEQ Regulations, but from
government agencies having failed to follow adequately the clear
language and intent of both these documents. Nothing in either NEPA or
the CEQ Regulations requires agencies to take years to complete
environmental studies, or to produce multi-volume documents, or to
spend millions of dollars to do so. Furthermore, the record of NEPA
litigation shows that in most of the court cases that agencies have
lost, the root cause has been their failure to perform the basic
planning functions that NEPA requires, i.e., to analyze objectively the
potential impacts of their actions, including reasonable alternatives,
and to prepare the required public documents--either an Environmental
Impact Statement (EIS) or a shorter Environmental Assessment (EA).
Attempts to defend such failures have often consumed more time and
funds than it would have taken to produce at the outset the NEPA
analysis and documents that the courts eventually required.
In an effort to review and improve the NEPA process, CEQ itself
established an interagency NEPA Task Force in the spring of 2002. This
Task Force, composed of experienced NEPA practitioners from multiple
federal agencies, published its report, entitled ``Modernizing NEPA
Implementation,'' in September 2003. This report made many
recommendations for improving the NEPA process, organized under six
general themes. None of those recommendations involves changes to NEPA
or to the CEQ Regulations. The NAEP supports the findings of the CEQ
Task Force; it is our position that the recommendations contained in
its report should be implemented without delay, and that the Congress
should provide CEQ and the agencies with the additional resources that
will be needed to do so.
NAEP's Position on Specific Recommendations of CEQ's NEPA Task Force
The most important of these recommendations, in our opinion, is
that one or more additional professional positions be established at
CEQ to provide the agencies with more ongoing NEPA-related technical
advice, policy guidance, and coordination. At present only one
professional staff member is assigned this function full-time, whereas
in past administrations as many as six full-time professionals on the
CEQ staff performed these essential duties in dealing with the more
than 80 federal agencies subject to NEPA. We believe that additional
CEQ oversight can and should help the agencies to be more efficient and
more effective in the conduct of their NEPA compliance, and should help
to reduce unnecessary delays, expense, and litigation. Other CEQ Task
Force recommendations that we consider to be very important are:
CEQ should issue further guidance to the agencies
regarding Environmental Assessment (EA) documents. This guidance should
describe minimum requirements for short EAs, including requirements for
public involvement, alternatives, impact avoidance and mitigation, and
clarify that the size of EAs should be commensurate with the size and
complexity of environmental issues, public concerns, and project scope.
CEQ should issue guidance for better integrating the NEPA
process with the Endangered Species Act's Section 7 consultation
requirements, with the National Historic Preservation Act's Section 106
consultation requirements, and with relevant requirements of other
environmental review laws and executive orders.
CEQ should work with the federal agency NEPA offices to
clarify and promote consistent practices for invoking the Categorical
Exclusion option for certain agency actions pursuant to the CEQ
Regulations, in order to expedite the approval process for actions that
truly have no significant adverse environmental impacts.
CEQ should develop, in conjunction with the agencies and
the public, a document entitled ``Citizens Guide to NEPA,'' to enable
non-government stakeholders and other interested persons to better
understand and to participate in the NEPA process in a timely and
constructive manner.
CEQ should strengthen its ``Lead Agency'' guidance so
that projects requiring multiple federal approvals (for funding and/or
permits) can be expedited.
It should be obvious that CEQ will need additional professional
staff resources to carry out these recommendations, which is why we
urge the Congress to restore to CEQ at least some of those positions
that have been lost over the past decade or more.
Importance of Objective Analysis of Agency NEPA Staff and Resources
The CEQ Task Force did not provide any analysis or recommendations
concerning the adequacy of professional staff or budgets for the NEPA
compliance offices in the federal agencies. However, a recent
independent review of the NEPA process in 12 different federal agencies
(reported in the above-mentioned December 2003 special issue of our
journal, Environmental Practice, Vol. 5, No.4) found that:
...the majority of the NEPA offices that we evaluated have been
subjected to reductions in both their budget and staff
positions over the past several years. In some cases, repeated
cuts have reduced these offices to less than half their
capacity of only five to ten years ago...As a result, NEPA
officials have repeatedly been asked to `do more with less'.
(R. Smythe and C. Isber, ``NEPA in the Agencies: a Critique of
Current Practices,'' p.292.)
NAEP believes that these cuts have contributed to a decline in the
quality of NEPA documents and to unnecessary delays and costs in
implementing the NEPA process.
Any objective Congressional review of NEPA should include an
evaluation of the professional staff levels, funding, opportunities for
training and advancement, and work loads in these ``front line'' NEPA
offices, and should make appropriate recommendations for improving
their capabilities. We urge your Task Force to conduct such an
evaluation.
A Positive Strategy for Improving the NEPA Process
Agency officials responsible for NEPA compliance need support and
encouragement to do objective, professional work from the outset,
rather than more pressure to rush through the process in order to meet
rigid deadlines or to support predetermined decisions. These officials
need better access to NEPA training programs and materials, to assure
not only that their technical knowledge of NEPA policies and practices
is current but also to inspire them to develop and apply innovative
methods to improve the NEPA process, such as integrating the NEPA
process with the development of Environmental Management Systems (EMS).
EMS is a process originally developed by the private sector that
federal agencies are now beginning to adopt as required by Presidential
Executive Order 13148. Integration of these two processes should lead
to improvements in both and therefore to better planning and long-term
management of federal programs and activities.
NAEP intends to continue working with CEQ and the agencies to help
improve the NEPA process. We would, for example, be pleased to
contribute to a ``Citizens Guide to NEPA'' and/or to help develop
additional administrative guidance to make NEPA's environmental
evaluation and review process more effective and efficient, and less
costly and time-consuming.
Summary and Conclusion
In conclusion, NAEP has supported and continues to advocate
improvements in the implementation of one of our nation's most
important environmental laws. We are, however, concerned that any
Congressional recommendations for changes in the existing NEPA process
be based on a careful, objective analysis of facts, rather than on
vague allegations of problems that may result from causes other than
the requirements of NEPA itself or CEQ's NEPA Regulations. NAEP's view
is that the recommendations we have described above should be
implemented, and their effectiveness should be objectively evaluated,
before other potentially unnecessary or counterproductive legislative
actions are pursued.
______
ATTACHMENT TO NAEP TESTIMONY
FEDERAL COURT INTERPRETATIONS OF NEPA
Since NEPA's enactment in 1970, the courts have played a primary
role in its interpretation and enforcement. Indeed one of the very
first NEPA cases, Calvert Cliffs' Coordinated Committee v. Atomic
Energy Commission, 449 F.2d 1109 (D.C. Cir. 1971), cert. denied, 404
U.S. 942 (1972), set the tone for NEPA compliance in the federal
agencies, stating unequivocally their obligation to comply with the
statute ``to the fullest extent possible.''
In this seminal case, the court was asked to review rules
promulgated by the Atomic Energy Act on NEPA implementation. Although
the rules required applicants for construction permits and operating
licenses to prepare their own ``environmental reports'' and required
the AEC's regulatory staff to prepare its own detailed statement of
environmental costs, benefits, and alternatives, the rules did set
limits on how environmental issues would be considered in the
Commission's decisionmaking process.
In its decision, the court made several important points regarding
NEPA and federal agency compliance with the statute:
(1) The general substantive policy in Section 101 of NEPA is
flexible. ``It leaves room for a responsible exercise of discretion and
may not require particular substantive results in particular
problematic instances.''
(2) The procedural provisions in NEPA Section 102 are not as
flexible and indeed are designed to see that all federal agencies do in
fact exercise the substantive discretion given them.
(3) NEPA makes environmental protection a part of the mandate of
every federal agency and department. Agencies are ``not only permitted,
but compelled, to take environmental values into account. Perhaps the
greatest importance of NEPA is to require [all] agencies to consider
environmental issues just as they consider other matters within their
mandates.''
(4) To insure that an agency balances environmental issues with
its other mandates, NEPA Section 102 requires agencies to prepare a
``detailed statement.'' The apparent purpose to the ``detailed
statement'' is to aid in the agencies' own decisionmaking process and
to advise other interested agencies and the public of the environmental
consequences of the planned action.
(5) The procedural duties imposed by NEPA are to be carried out
by the federal agencies ``to the fullest extent possible.'' ``This
language does not provide an escape hatch for footdragging agencies; it
does not make NEPA's procedural requirements somehow 'discretionary'.
Congress did not intend the Act to be a paper tiger.'' NEPA's
procedural requirements ``must be complied with to the fullest extent,
unless there is a clear conflict of statutory authority.''
(6) Section 102 of NEPA mandates a careful and informed
decisionmaking process and creates judicially enforceable duties. The
reviewing courts probably could not reverse a substantive decision on
the merits, but if the decision were reached procedurally without
consideration of environmental factors--conducted fully and in good
faith--it is the responsibility of the courts to reverse.
(7) The AEC's interpretation of its NEPA responsibilities was
``crabbed'' and made ``a mockery of the Act.'' Section 102's
requirement that the ``detailed statement'' 'accompany' a proposal
through agency review means more than physical proximity and the
physical act of passing papers to reviewing officials. It is not enough
that environmental data and evaluation merely ``accompany'' an
application through the review process but receive no consideration
from the hearing board as contemplated by the AEC regulations.
(8) The AEC improperly abdicated its NEPA authority by relying on
certifications by federal, state, and regional agencies that the
applicant complied with specific environmental quality standards. NEPA
mandates a case-by-case balancing judgment on the part of federal
agencies; in each case, the particular economic and technical benefits
of an action must be weighed against the environmental costs.
Certification by another agency that its own environmental standards
are satisfied involves an entirely different kind of judgment and
attend to only one aspect of the problem--the magnitude of certain
environmental costs. Their certification does not mean that they found
no environmental damage, only that it was not high enough to violate
applicable standards. The only agency in a position to balance
environmental costs with economic and technical benefits is the agency
with the overall responsibility for the project.
(9) NEPA requires that an agency--to the fullest extent
possible--consider alternatives to its actions that would reduce
environmental damage. By refusing to consider requiring alterations of
facilities (which received construction permits before NEPA was
enacted) until construction is completed, the AEC may effectively
foreclose the environmental protection envisioned by Congress.
(10) Delay in the final operation of the facility may occur but is
not a sufficient reason to reduce or eliminate consideration of
environmental factors under NEPA. Some delay is inherent in NEPA
compliance, but it is far more consistent with the purposes of the Act
to delay operation at a stage when real environmental protection may
come about than at a stage where corrective action may be so costly as
to be impossible.
After the Calvert Cliffs case, other federal courts went on to
define what the NEPA meant by ``reasonable alternatives,''
``significance,'' and ``major federal action.'' In the 1970s, CEQ
codified these decisions in its guidelines and later regulations that
are binding on all federal agencies (40 CFR Parts 1500--1508). A
discussion of the major cases interpreting NEPA, and recent NEPA cases,
can be found at the NAEP website at www.naep.org.
Recent Federal Court Rulings on NEPA
Moving ahead to more recent judicial interpretations of NEPA, the
following trends can be noted:
Agencies prevail when they could demonstrate that they
have given a ``hard look'' at the potential environmental consequences
of the proposed action and alternatives.
U.S. Forest Service used the best scientific evidence
available and made reasonable judgments of activities to include in a
cumulative impact analysis. Selkirk Conservation Alliance v. Forsgren:
336 F.3d 944 (9th Cir. 2003)
National Marine Fisheries Service took a hard look at the
dolphin mortality problem and the effects of the proposed rule on the
environment. Defenders of Wildlife v. Hogarth 330 F.3d 1358 (Fed. Cir.
2003)
Agency adequately considered and addressed the project
effects on contamination and the environment and made an informed and
reasoned decision that no EIS was required. Highway J Citizens Group v.
Mineta 34 ELR 2513 (7th Cir. 2003).
Agencies complied with NEPA procedures, did not conduct
the assessment in bad faith, and followed relevant guidance. Spiller v.
White: (Civil Action No. 02-50956 (5th Cir. 2003).
The agency narrowed the range of reasonable alternatives
by using a screening process and reasonable selection standards. Lee v.
U.S. Air Force, 354 F.3d 1229 (10th Cir. 2004).
The agency articulated a basis for its analysis and
conclusions. In re Operation of the Missouri River System, (D. Minn.
2004) (unreported). Also, Greater Yellowstone Coalition v. Flowers, 359
F.3d 1257 (10th Cir. 2004).
The U.S. Navy made a detailed study of the risk and
determined the risk to be remote. Ground Zero Center for Non-violent
Action v. United States Department of the Navy, 383 F.3d 1082 (9th Cir.
2004).
The Federal Aviation Administration adequate guidance to
the EIS contractor and participated in the EIS preparation. Communities
Against Runway Expansion, Inc. v. Federal Aviation Administration, 355
F.3d 678 (D.C. Cir. 2004).
Agencies lose when they skirt NEPA procedures, ignore (or
fail to demonstrate that they considered) opposing evidence,
demonstrate bad faith, or change the proposal without complying with
NEPA. For example,
U.S. Forest Service violated NEPA by denying requests to
extend the scoping period, failing to explore alternatives, and failing
to prepare a supplemental EIS after making ``substantial'' changes to
the proposed action. Wyoming v. Department of Agriculture 33 ELR 20250
(D. Wyo. 2003).
Agency failed to respond to 7 scientific studies that cast
doubt on the agency's conclusions. Center for Biological Diversity v.
U.S. Forest Service 34 ELR 20004 (9th Cir. 2003).
Reasoning relied on in a supplemental EIS had been
considered and rejected in the original EIS, but the agency did not
supply a ``reasoned explanation'' for the reversal of its views. Fund
for Animals v. Norton Civil Action No. 02-2367 (D.D.C. 2003).
EA was inadequate because it failed to discuss a report
critical of post-fire logging and disregarded scientific evidence that
post-fire salvaging likely results in adverse environmental impacts.
League of Wilderness Defenders/Blue Mountains Diversity Project v.
Marquis-Brong 33 ELR 20187 (D. Ore. 2003).
The agency failed to engage in a reasoned analysis of two
studies on the impact of low frequency active sonar on fish and failed
to make evidence available to the public. Natural Resources Defense
Council v. Evans 33 ELR 20153 (N.D. Cal. 2003).
The U.S. Army Corps of Engineers failed to provide a
statement of reasons why the proposed action would have negligible
impacts on the environment, leaving the court unpersuaded that it had
taken a ``hard look'' at potential impacts. Ocean Advocates v. United
States Army Corps of Engineers, 361 F.3d 1108 (9th Cir. 2004). Also
Pennaco Energy, Inc. v. U.S. Department of the Interior, 377 F.3d 1147
(10th Cir. 2004); Western Land Exchange Project v. United States Bureau
of Land Management, 315 F. Supp. 2d 1068 (D. Nev. 2004).
The Bureau of Land Management did not sufficiently
identify or discuss the incremental impact that can be expected from
each successive timber sale or how those individual impacts might
combine or synergistically interact with each other to affect the
surrounding environment. Klamath-Siskiyou Wildlands Center v. Bureau of
Land Management, 387 F.3d 968 (9th Cir. 2004)
The agency failed to adequately consider the impacts of
past actions in a cumulative impact analysis. Lands Council v. Powell,
379 F.3d 738 (9th Cir. 2004).
The agency did not comply with NEPA when designating
critical habitat under the Endangered Species Act. Cape Hatteras Access
Preservation Alliance v. United States Department of the Interior, 344
F. Supp. 2d 108 (D.D.C. 2004).
The agency failed to conduct any NEPA review before
allowing tourist vans through a wilderness area. Wilderness Watch &
Public Employees for Environmental Responsibility v. Mainella, 375 F.3d
1085 (11th Cir. 2004).
The agency failed to prepare an EIS for, and to consider
the cumulative impacts of, the issuance of multiyear special use
permits to commercial packstock operators in wilderness areas. High
Sierra Hikers Association v. Blackwell, 381 F.3d 886 (9th Cir. 2004).
Federal courts have also recently reiterated that:
An agency is entitled to rely on their own experts as
long as their decisions are not arbitrary and capricious. Lee v. U.S.
Air Force, 354 F.3d 1229 (10th Cir. 2004).
Agencies must use the best available scientific
information and are not required to conduct their own studies (when
existing studies are available). Lee v. U.S. Air Force, 354 F.3d 1229
(10th Cir. 2004).
The agency is under no obligation to consider each and
every alternative but rather it must evaluate a considerable range of
alternatives to allow it to make a reasoned decision. In re Operation
of the Missouri River System, (D. Minn. 2004) (unreported).
Project alternatives derive from the purpose and need
statement. Although an agency cannot define its objective in
unreasonably narrow terms, an agency has considerable discretion to
define the purpose and need for a project. Westlands Water District v.
United States Department of the Interior, 376 F.3d 853 (9th Cir. 2004).
When new information arises following the issuance of a
DEIS, it may validly be included in the FEIS without recirculation.
Westlands Water District v. United States Department of the Interior,
376 F.3d 853 (9th Cir. 2004).
Documentation of reliance on a categorical exclusion need
not be detailed or lengthy; it need only be long enough to convince a
court that an agency considered whether a categorical exclusion applied
and concluded that it did. Wilderness Watch & Public Employees for
Environmental Responsibility v. Mainella, 375 F.3d 1085 (11th Cir.
2004).
The existence of opposition does not automatically render
a project controversial. Cold Mountain v. Garber, 375 F.3d 884 (9th
Cir. 2004).
Descriptions in the DEIS were sufficient to provide a
``springboard for public comment.'' A supplemental EIS is only needed
where new information provides a seriously different picture of the
environmental landscape. National Committee for the New River, Inc. v.
Federal Energy Regulatory Commission, 373 F.3d 1323 (D.C. Cir. 2004).
Cumulative Impacts
The need to adequately address cumulative impacts has also received
attention in recent court decisions:
Idaho Sporting Congress v. Rittenhouse, 305 F.3d 957 (9th
Cir. 2002) (use of a home range scale, rather than a landscape scale as
recommended by USFS scientists, rendered the cumulative impact analysis
inadequate)
Native Ecosystems Council v. Dombeck, 304 F. 3d 886 (9th
Cir. 2002) (although individual projects had independent utility and
were not required to be considered together in the same NEPA document,
the EAs for each did not adequately consider the cumulative impacts of
the other projects as reasonably foreseeable actions)
Grand Canyon Trust v. Federal Aviation Administration,
290 F.3d 339 (D.C. Cir. 2002) (FAA addressed only the incremental
increase in noise that would occur as a result of its approval of a
replacement airport near the Zion National Park, and not the cumulative
impact on the park. There was no way to determine whether the FAA's
estimated 2 percent increase, in addition to other noise impacts on the
park, will significantly affect the quality of the human environment.
The FAA analysis does not aggregate the noise impacts on the park.)
Kern v. U.S. Bureau of Land Management, 284 F.3d 1062
(9th Cir. 2002) (failed to adequately analyze cumulative impacts of
proposed timber project)
Texas Committee on Natural Resources v. Van Winkle, 197
F. Supp. 2d 586 (N.D. Tex. 2002) (Army Corps was required to consider
the cumulative impacts of reasonably foreseeable future actions in the
same geographical area, although those actions were not actual
proposals and precise information about them was not available. There
was a reasonable basis to assume some or all of the projects would be
implemented. The cumulative impacts analysis was cursory and the agency
did not take a ``hard look'' at the proposed action's environmental
consequences, including cumulative impacts).
Sierra Club v. Bosworth, 199 F. Supp 2d 971 (N.D. Cal.
2002) (EIS for post-fire logging project fails to adequately disclose
or analyze cumulative impacts on management indicator species, fuel
break maintenance, or fire-fighting tactics. Although the project is
not connected to other post-fire logging projects in the forest, the
EIS fails to adequately disclose and consider those actions in the EIS.
Given their similarities with respect to timing, geography, and
purpose, these actions may result in significant impacts and such
impacts must be addressed in a single EIS.)
Recent U.S. Supreme Court Decisions
Since NEPA's enactment, the U.S. Supreme Court has issued 14
decisions regarding NEPA compliance issues. The two most recent cases
were decided in the October 2003 term: Department of Transportation v.
Public Citizen, 541 U.S. 752, 124 S.Ct. 2204 (2004), and Norton v.
Southern Utah Wilderness Alliance, 541 U.S.--------, 124 S. Ct. 2373
(2004). Each of these cases is described below, along with the Court's
holdings.
Department of Transportation v. Public Citizen
In 2001, an international arbitration panel determined that a
moratorium on the entry of Mexican motor carriers into the U.S.
violated the North American Free Trade Agreement (NAFTA). President
Bush subsequently announced that he would lift the moratorium after the
Department of Transportation (DOT) issued regulations governing
Mexican-domiciled motor carriers seeking to operate within the United
States. Congress then prohibited the Department from expending any
funds for licensing or permitting of Mexican-based motor carriers in
the U.S. until the Department had issued safety and inspection rules to
cover those carriers.
DOT promulgated three regulations governing Mexican motor carriers
and, for two of them, prepared EAs that concluded that the regulations
would have no significant impact on the environment. DOT did not
prepare an EA for the third regulation because it concluded the
regulation fell within its categorical exclusion regulations. DOT also
did not make conformity determinations under the Clean Air Act for any
of the three regulations because it concluded that the regulations fell
within exceptions to Clean Air Act requirements.
Following the issuance of the regulations, the President lifted the
moratorium, permitting Mexico-domiciled motor carriers to offer cross-
border service.
Plaintiff public interest and environmental organizations and
trucking unions filed suit in the U.S. Court of Appeals for the 9th
Circuit, arguing that the regulations were invalid because DOT failed
to comply with NEPA and the Clean Air Act. Specifically, they argued
that allowing Mexican trucks to operate in the U.S. would increase air
pollution in violation of state standards and would harm residents of
border states.
DOT argued that additional Mexican truck and bus traffic and any
incidental increases in air pollution would be the result of the
President's action in lifting the moratorium rather than as a result of
the agency's safety and licensing regulations. Thus, the effects of the
traffic would be attributable to the President's exercise of his
foreign policy power, not agency rulemaking. Because NEPA and Clean Air
Act requirements do not apply to actions of the President, DOT argued
that the link between the regulations and any environmental impacts of
increased traffic from Mexican vehicles were too attenuated to trigger
NEPA or Clean Air Act requirements.
The Court of Appeals rejected that argument, stating that the
``distinction between the effects of the regulations themselves and the
effects of the presidential rescission of the moratorium on Mexican
truck entry'' were ``illusory.'' Because the court limited its review
to the question of whether DOT had authority to promulgate its
regulations without complying with NEPA and Clean Air Act requirements,
it found that its decision did not implicate the President's
``unreviewable discretionary authority to modify the moratorium'' or
affect the United States' ability to comply with NAFTA. The court found
that DOT had acted arbitrarily and capriciously by failing to prepare
EISs and Clean Air Act analyses before issuing the regulations.
In a unanimous opinion authored by Justice Thomas, the U.S. Supreme
Court reversed the Court of Appeals, finding that DOT lacked discretion
to prevent cross-border operations of Mexican motor carriers and thus
was not required to evaluate the environmental effects of such
operations. The Court rejected the plaintiffs' argument that DOT was
required to examine releases of air emissions as an indirect effect of
the issuance of the regulations because, according to the Court, DOT
was unable to countermand the President's lifting of the moratorium or
otherwise exclude Mexican trucks from operating in the United States.
DOT was required by law to register any motor carrier willing and able
to comply with various safety and financial responsibility rules, and
only the moratorium prevented it from doing so for Mexican trucks. The
causal connection between the proposed regulations and the entry of
Mexican trucks was insufficient to make DOT responsible under NEPA to
consider the environmental effects of entry, citing Metropolitan Edison
Co. v. People Against Nuclear Energy, 460 U.S. 766 (1983). ``It would
not, therefore, satisfy NEPA's ``rule of reason'' to require an agency
to prepare a full EIS due to the environmental impact of an action it
could not refuse to perform.'' Slip opinion at 15.
The Court also declined to address the plaintiffs' argument that
the agency should have considered other alternatives that might
mitigate the environmental impacts of authorizing cross-border truck
operations because the plaintiff had not raised the issue of additional
alternatives during the NEPA process:
``None of the [plaintiffs] identified in their comments any
rulemaking alternatives beyond those evaluated in the EA, and none
urged [DOT] to consider alternatives. Because [plaintiffs] did not
raise these particular objections to the EA, [DOT] was not given the
opportunity to examine any proposed alternatives to determine if they
were reasonably available. [Plaintiffs] have therefore forfeited any
objection to the EA on the ground that it failed adequately to discuss
potential alternatives to the proposed action.'' Slip opinion at 10.
The Court also held that DOT did not act improperly by not
performing a full conformity analysis pursuant to the Clean Air Act,
stating that emissions attributable to an increase in Mexican trucks
across the border were not indirect emissions because DOT could not
control the emissions.
Commentary: The Court's holding is that an agency is not
responsible for, and thus is not required to evaluate under NEPA, any
direct, indirect, or cumulative environmental impact over which it has
no control. While in many circumstances an agency can refuse to act
because the environmental impacts of its proposed action would be too
great, here DOT only had jurisdiction to enact safety and financial
responsibility regulations. It did not have authority to refuse to
issue regulations or to refuse, on environmental grounds, to allow
Mexican trucks to enter the United States if they met safety and
financial responsibility.
The Court also concluded that the informational purpose of NEPA
would not be served by evaluating air emissions because no matter what
the public said about that analysis, DOT could not act upon those
views. This ignores, however, that NEPA documents are prepared for the
information of the agency, the public, and Congress. While DOT may not
have been able to act upon the information, Congress could have. As CEQ
stated in its ``40 Most Asked Questions,'' ``[a]lternatives that are
outside the scope of what Congress has approved or funded must still be
evaluated in the EIS if they are reasonable, because the EIS may serve
as the basis for modifying the Congressional approval or funding in
light of NEPA's goals and policies.'' Question 2b.
The Court also reiterated that members of the public must put forth
their concerns regarding the scope and content of a NEPA document
during the NEPA process, and not wait for a court proceeding to raise
an issue for the first time. Of course this presumes, in the case of an
EA, that there is a public comment process in which the public is
encouraged to present their concerns.
Norton v. Southern Utah Wilderness Alliance
The Southern Utah Wilderness Alliance (SUWA) sued the U.S. Bureau
of Land Management (BLM) for violating the Federal Land Policy and
Management Act (FLPMA) and NEPA by not properly managing off-road
vehicle (ORV) use on federal lands that had been classified as
wilderness study areas or as having wilderness qualities. SUWA sought
relief under the Administrative Procedure Act (APA) claiming that BLM
should be compelled to carry out mandatory, non-discretionary duties
required by FLPMA and NEPA.
SUWA claimed that current levels of ORV use were impairing the
suitability of the wilderness study areas so that they would no longer
be appropriate for wilderness designation, and that BLM's failure to
ensure non-impairment violated a statutory duty, constituting the
violation of a mandatory, non-discretionary duty actionable under the
APA, which gives courts authority to compel ``agency action unlawfully
withheld or unreasonably delayed.'' SUWA acknowledged that it could not
compel BLM to act in any specific way--BLM has discretion to comply
with the non-impairment requirement in a variety of ways--but argued
that it could sue to compel BLM to act in some way of its choosing that
would meet BLM's non-impairment obligation.
BLM argued that all judicial review under the APA is limited to
final agency action, or to compel final agency action that has been
withheld, and that the day-to-day operations of BLM land management
that SUWA is attempting to challenge were outside the concept of final
agency action.
Although the U.S. District Court dismissed SUWA's claims, the U.S.
Court of Appeals for the 10th Circuit reversed the lower court, holding
that ``[w]here, as here, an agency has an obligation to carry out a
mandatory, non-discretionary duty and either fails to meet an
established deadline or unreasonably delays in carrying out the action,
the failure to carry out that duty is itself `final agency action.'''
Before the 10th Circuit, SUWA also argued that BLM's failure to
take a ``hard look'' at information suggesting that ORV use has
substantially increased since NEPA studies for the wilderness study
areas were issued violated NEPA. SUWA argued that BLM should be
compelled to take a hard look at this information and decide whether
supplemental NEPA documents should be prepared. The Court of Appeals
agreed that BLM could be compelled, dismissing BLM's arguments that it
should not be compelled to take a hard look at new information because
(1) the agency would be undertaking NEPA analysis in the near future
and (2) the agency faced budget constraints.
In a unanimous opinion authored by Justice Scalia, the U.S. Supreme
Court reversed the Court of Appeals, holding that an APA claim can
proceed only where a plaintiff asserts that an agency failed to take a
discrete agency action, as opposed to a broad program, that it is
legally required to take. Further, the Court held that while BLM was
obligated to not impair the suitability of wilderness study areas for
preservation of wilderness, the agency had discretion to decide how to
achieve that objective.
With respect to the NEPA claim, the Court noted that
supplementation of a NEPA document is required if there are significant
new circumstances or new information relevant to environmental concerns
and bearing on the proposed action or its impacts (40 CFR Sec. 1502.9).
The Court stated that supplementation was required only if there
remains a federal action to occur (citing Marsh v. Oregon Natural
Resources Council, 490 U.S. 360 (1989)). The action that required the
EIS was the approval of the land use plan; once that plan was approved,
there was no ongoing ``major federal action'' that could require
supplementation. The Court did state that BLM would be required to
perform additional NEPA analyses if a land use plan were amended or
revised.
______
Ms. McMorris. Thank you. Hold your applause, please.
Mr. Spainhour.
STATEMENT OF CHARLES SPAINHOUR, VULCAN MATERIALS
Mr. Spainhour. I want to thank Congresswoman Drake and
Madam Chairwoman for this opportunity to testify. My name is
Charles Spainhour, and I am the environmental manager for
Vulcan Materials Company.
Vulcan Materials Company is the nation's leading producer
of construction aggregates, primarily crushed stone, sand, and
gravel. The materials that we produce and the rest of the
aggregates industry produces are key building blocks to most
construction activities. Without construction aggregates, most
roads, sidewalks, driveways, bridges, dams, sewer, water main
projects, railroads, and other building construction would not
exist.
We are headquartered in Birmingham, Alabama. We currently
have 356 facilities in 21 states, including the District of
Columbia and Mexico. In 2004, we employed approximately 7,800
men and women, and shipped 243 million tons of products, and
had sales totaling $2.2 billion. We do have a local connection
in this area. We have operations in this area in Richmond,
Virginia Beach, and we also have an office in Richmond.
When NEPA was enacted in 1969, it was a landmark piece of
legislation with a noble cause, to ensure that Federal agencies
evaluated the effects of their activities on human environment
and factored the results of that analysis into their
decisionmaking process.
Since NEPA's enactment, an enormous amount of additional
environmental legislation and regulation has been promulgated.
Vulcan Materials Company, like the rest of our industry, is
heavily regulated. Permitting of new and expansions of existing
quarries and sand and gravel operations is a very complex and
time consuming activity. Depending on the area of the country
that you are in, it can be a multi-hear, several hundred
thousand dollar process.
A typical facility requires air emissions permits, storm
and process water discharge permits, mine permits and land use
authorizations, and a myriad of local regulations and
authorizations. In many cases, we have overlapping requirements
from Federal, State and local agencies.
In the event an operation has impacts on wetlands and
endangered species, we are also going to have Federal
involvement with the Corps of Engineers, EPA, and possibly Fish
and Wildlife Service.
So what is the connection with NEPA? In the event that a
NEPA review is required due to Federal agency involvement, the
permitting process can be extended almost indefinitely. Given
the already burdensome and time consuming process of permitting
a new operation, the additional delays posed by the NEPA
process are onerous.
In working with our resource managers regarding Vulcan
projects that involve NEPA review, I have observed a trend that
speaks volumes about the burden of the process. In some cases,
we conclude to not develop resources that would otherwise be
available to us, so that we can avoid interaction with the NEPA
process and the delays associated with it.
Suggestions for reform from Vulcan Materials Company: A
significant issue with the current NEPA process is that there
is no clear endpoint. Clear definition needs to be given
regarding what constitutes a completed environmental study.
Another significant and related issue is that NEPA does not
prescribe significant timeframes.
There need to be specific, prescribed timeframes for
completion of the various aspects of the NEPA process,
including agency review and decisionmaking. NEPA also needs to
provide responsibility and authority for the lead agency to
ensure adherence to those timeframes.
The triggering mechanisms within NEPA for requiring
preparation of an environmental impact statement are ``Federal
actions significantly affecting the quality of the human
environment.'' However, NEPA does not define what actions are
considered significant. NEPA needs to be revised to provide
clear definition of what constitutes significant Federal
actions.
NEPA requires evaluation of alternatives to Federal actions
considered significant as part of the Environmental Impact
Statement. This requirement also results in the evaluation of a
significant number of alternatives, which both delays the
process and increases the cost of permitting.
Lead agencies concerned about legal challenges require
detailed and exhaustive reviews of alternatives. While this is
important to understand the environmental impact of the
process, we believe in some cases it goes overboard.
NEPA needs to be revised to provide a clear definition of
the types and number of alternatives that must be considered.
The NEPA process should also consider alternatives that are
truly valid, economically viable, and technologically
demonstrated and provide an alternative to the project.
NEPA includes provisions for a judicial review process of
Federal agency decisions. The original intent of these
provisions is honorable: To ensure that all affected parties
have an opportunity to challenge agency decisions. However,
over the last 10 to 20 years the process has been taken hostage
over fear of judicial challenges and lawsuits.
Federal agencies involved in the process require extensive
and exhaustive and detailed analysis of issues associated with
a protects. Agencies place a disproportionate emphasis on the
preparation of documentation. The concern over legal challenges
handicaps the decisionmaking process. Lead agencies are
resistant to consider actions as nonsignificant, resistant to
grant final approval for a project because of fear over
litigation.
We offer the following suggestions for reform of the
judicial review process. Establish clear guidelines on who has
standing to challenge an agency decision. Establish a
reasonable time period for filing the challenge. Establish
clear timeframes for the judicial review, and create a clear
endpoint to the judicial review process.
In conclusion, I wanted to show the Committee an example of
an environmental impact statement that affected some of my
fellow mining companies down in the Miami-Dade area. This is an
example of how burdensome the documentation can become.
This process involved development of a freshwater lake belt
plan in the Miami-Dade area that has taken over 10 years and
they still do not have an endpoint on the process.
In conclusion, I want to thank the Committee once again for
the opportunity to testify. I appreciate the willingness and
interest to focus on this important issue.
[The prepared statement of Charles Spainhour follows:]
Statement of Charles J. Spainhour, Corporate Manager of Environmental
Services, Vulcan Materials Company
Introduction
Good afternoon. My name is Charles Spainhour and I am the manager
of environmental services for Vulcan Materials Company (``Vulcan''). I
want to thank the Committee for giving me this opportunity to provide
testimony on the role of NEPA, and to offer suggestions on how NEPA can
be improved.
Vulcan Materials Company is the nation's leading producer of
construction aggregates, primarily crushed stone, sand, and gravel. The
construction aggregates industry extracts natural resources such as
stone, sand and gravel through mining. Once these materials are
extracted they are processed through crushing, grinding, and screening
to reduce them to a size, shape and gradation where they can be used as
construction aggregates. These aggregate products are the literal
building blocks for most construction activities. Without construction
aggregates, roads, sidewalks, driveways, bridges, dams, sewer and water
systems, railroads, and most building construction could not exist.
Even wooden structures need construction aggregates for sound
foundations.
Vulcan is headquartered in Birmingham, Alabama. We operate 356
aggregate production and related facilities in 21 states, the District
of Columbia and Mexico. In 2004, the company employed approximately
7,800 men and women, shipped 243 million tons of aggregates, and had
sales totaling $2.2 billion. Our Mideast Division, which is based in
Winston-Salem, has a regional office in Richmond, Virginia, in the
heart of the Mid-Atlantic area.
In 2004, the entire construction aggregates industry produced
approximately 3 billion tons of aggregates valued at approximately $16
billion, contributing $37.5 billion to the nation's Gross Domestic
Product. In 2004, the industry employed over 115,000 men and women.
Impact of NEPA on the Construction Aggregates Industry
When NEPA was enacted in 1969, it was a landmark piece of
environmental legislation with a noble cause--to ensure that federal
agencies evaluated the effects of their activities on the human
environment and factored the results of this analysis into their
decision making process. Since NEPA's enactment, an enormous amount of
additional environmental legislation and regulation has been
promulgated. Vulcan Materials Company facilities, like the rest of the
aggregates industry, are heavily regulated. Vulcan Materials Company is
proud of our commitment to and our accomplishments in environmental and
social responsibility. As a company, we constantly strive to meet or
exceed our obligations under the various environmental permits that
have been granted to our operations.
Permitting of stone quarries and sand and gravel sites is a very
complex and time consuming activity. A typical Vulcan facility requires
air emissions permits, storm and process water discharge permits, mine
permits or land use authorizations, and a myriad of local registrations
or permits. In many cases there are overlapping permit requirements
from federal, state and local governmental agencies. In the event an
operation affects wetlands or endangered species, additional permits
may be required from federal agencies such as EPA, the Corps of
Engineers, and the Fish and Wildlife Service.
So what is the connection with NEPA? A majority of Vulcan's
permitting activities are handled at the state or local level and do
not involve NEPA. However, even when NEPA is not involved, the
permitting of a new operation or major expansion of an existing
operation is normally a multiyear process. In the event that a NEPA
review is required due to federal agency involvement, the permitting
process can be extended almost indefinitely. Given the already
burdensome and time consuming process of permitting a new quarry
operation, the additional delays posed by the NEPA process are onerous.
In working with our resource managers regarding Vulcan projects
that involved NEPA review, I have observed a trend that speaks volumes
about the burden of the NEPA process. In some cases we conclude that
the process is so burdensome we choose to not pursue aggregate
resources rather than work through the drawn out and costly NEPA
process.
Suggestions for Reform
1. Endpoint Needed in Process
A significant issue with the current NEPA process is that there is
no clear end point to the process. Clear definition needs to be given
regarding what constitutes a completed environmental study, whether
that study is an Environmental Assessment (EA) or Environmental Impact
Statement (EIS). This definition is currently left to the discretion of
the lead agency, which creates opportunities for inconsistencies and
the incorporation of specific agency agendas.
Another significant and related issue is that NEPA does not
prescribe timeframes. There need to be specific, prescribed time frames
for completion of the various aspects of the NEPA process, including
agency review and decision making. NEPA needs to place responsibility
on the lead agency for adherence to these time frames, and include
provisions for default approval decisions in the event the agency
misses the designated time frames.
2. Clear Definition of Significant Federal Actions
The triggering mechanisms within NEPA for requiring preparation of
an Environmental Impact Statement (EIS) are ``federal actions
significantly affecting the quality of the human environment.''
However, NEPA does not define what actions are considered significant.
As currently applied this shortcoming causes project proponents to go
through the full Environmental Impact Statement (EIS) process for
actions that should be addressed through categorical exclusions or the
simpler Environmental Assessment (EA) process.
NEPA needs to be revised to provide a clear definition of what
constitutes significant federal actions.
3. Clarify Requirements for Alternatives Analysis
NEPA requires evaluation of alternatives to federal actions
considered ``significant'' as part of the Environmental Impact
Statement (EIS). This requirement as currently applied often results in
the evaluation of a significant number of alternatives, which can both
delay the NEPA process and increase its associated cost. Lead agencies
concerned about legal challenges require detailed and exhaustive
reviews of alternatives that we believe go beyond the intent of the
legislation. This requirement is also a common way for project
opponents to delay a project by suggesting additional alternatives that
have to be evaluated late in the review process.
NEPA needs to be revised to provide a clear definition of the types
and number of alternatives that must be considered. NEPA should also be
revised to prevent project opponents from extending the process by
suggesting alternatives as a stalling tactic. This can be done by only
allowing suggested alternatives early in the NEPA process. The NEPA
process should also allow only the consideration of economically viable
and technologically demonstrated alternatives that support the goals of
the project.
4. Reform of the Judicial Review Process
NEPA includes provisions for a judicial review process of federal
agency decisions. The original intent of these provisions is
honorable--to ensure that all affected parties have an opportunity to
challenge decisions that they feel are not sound. However, over the
last ten to twenty years the NEPA process has been taken hostage by the
fear of judicial challenges and lawsuits. Federal agencies involved in
the process require exhaustive and detailed analysis of all issues
associated with a project under review, to the extent that minor issues
are treated as ``significant.'' Agencies place a disproportionate
emphasis on the preparation of voluminous documentation to ``pad'' the
record. The concern over legal challenges handicaps the decision making
process. Lead agencies are resistant to consider actions as non-
significant. This results in full Environmental Impact Statements (EIS)
where Environmental Assessments (EA) should have been allowed.
Additionally, lead agencies are hesitant to grant final approval for a
project or to resist pressure from project opponents to consider
irrelevant issues, for fear of litigation.
We offer the following suggestions for reform of the NEPA judicial
review process:
Establish clear guidelines on who has standing to
challenge an agency decision. These guidelines should take into account
factors such as the challenger's relationship to the proposed federal
action, the extent to which the challenger is directly impacted by the
action, and whether the challenger was engaged in the NEPA process
prior to filing the challenge;
Establish a reasonable time period for filing the
challenge. We suggest that challenges should be allowed to be filed
within 60 days of notice of a final decision on the federal action;
Establish clear time frames for the judicial review
process to minimize delays in completing the process;
Reduce or eliminate a challenger's right to appeal once a
judicial decision is rendered, and
Eliminate the multiple challenge delay tactic.
Conclusion
I thank the Committee for the opportunity to provide testimony on
the reform of NEPA. I applaud the willingness and interest of the
Committee to focus on this important issue. I hope my testimony has
helped you in this effort.
Thank you very much.
______
Ms. McMorris. Thank you. Thanks for being here.
Mr. Besa.
STATEMENT OF GLEN BESA, SIERRA CLUB
Mr. Besa. Thank you very much, Madam Chairman,
Congresswoman Drake. I think it is very important to appreciate
what Mr. Kelman said, and that in the analysis of the testimony
given before this Committee, including some of the comments by
yourself, Madam Chairman, that there be an analysis as to where
NEPA applies and where it doesn't, for example, with regard to
nuclear power plants and natural gas facilities.
I don't believe NEPA has been a problem there, and I think,
with Three Mile Island and Chernobyl, industry's interests
comport with that. In the case of an LNG plant, I know of one
in Chesapeake Bay, the Cove Point plant, that was mothballed
for many years. So I think it is very important to analyze
actually what NEPA does and what NEPA hasn't done in your
efforts.
I would also suggest that there have been some unique
exceptions to NEPA written into law just recently, that any
real analysis of this statute should also include a
comprehensive review of all those exceptions that have been
written into the law recently, including the current energy
bills before you. Look before you leap.
It is a good lesson we learn as children. It is just common
sense to think ahead about the consequences of the actions that
we take. Right now, that is what the National Environmental
Policy Act requires the Federal Government to do.
Before you build a highway near a person's home or truck
nuclear waste through their neighborhood, the government must
tell you, ask your opinion, and consider alternatives. That is
how democracy, government of, by, and for the people, is
supposed to work.
It is no accident that the most progress in protecting the
environment and ensuring citizens' rights to clean air and
clean water has occurred in the United States and other
democracies, and you just compare places like the former Soviet
Union and the legacy of pollution that they have had because of
the lack of freedom of information, the lack of public
participation.
Most projects sail through the NEPA process without undue
delay. Big projects with major environmental impacts take
longer, just because they have a longer planning process. In
fact, the NEPA review has become an integral part of the
planning process for most Federal agencies.
NEPA does not stop projects. If a project does not proceed
through the NEPA process, it is either because, in the course
of the NEPA analysis, it was determined by the agency that the
project lacked sufficient merit, which is often the case, or
because the agency conducting the NEPA review did not do an
adequate job, as Mr. Kelman referred to. In the latter case,
the agency may be ordered by a court to go back and consider
the elements or impacts of the project that had been ignored or
omitted.
A good example of that, of course, is the Outlying Landing
Field that Congresswoman Drake referred to, where the Navy did
not do a very good job, and they have been sent back to do a
supplement EIS.
Just to share another example with you, the King William
Reservoir, which is a massive drinking water project proposed
by Newport News--It is interesting that that project was
initiated through a contract between the City of Newport News
and King William County, and it wasn't until the NEPA process
kicked in that the citizens of King William County, including
the Native Americans severely impacted by this project, became
aware of the reservoir.
NEPA is critically important to citizens knowing what is
going on and being able to participate in the process, because
oftentimes other governmental processes do not include that
guaranty of public participation.
It is most unfortunate that some view NEPA and the
information gathering and sharing and the public participation
that it requires, as an obstruction to getting Federal projects
completed and permits issued. Recent statements in the media
and actually by this Committee have attempted to link the
flooding in New Orleans and the high gasoline prices to the
application of NEPA. I would like to use my time here in
rebutting those.
The last few days we have seen attempts--Excuse me, I just
said that. A couple of cases that I would like to mention that
I think have been used here.
Save Our Wetlands v. Rush in 1977: This actually is a case
around New Orleans where there was a proposal to build a 25-
mile long barrier from the Mississippi border to the
Mississippi River. The communities around Lake Pontchartrain
and local fishermen opposed this project because of the massive
impact it would have had on the economy.
Save Our Wetlands, a local organization there, filed a
lawsuit, and they secured an injunction from Federal District
Court Judge Charles Schwartz. The Judge required the Corps to
do proper studies of the proposed new levee system before
moving forward. The Corps just decided not to do it, and 30
years later they haven't done those studies that the court
asked them to do.
Another case that involved the Sierra Club was Mississippi
River Basin Alliance v. Martin Lancaster in 1996. Although this
case has been cited in some newspaper accounts, it is important
to recognize that the lawsuit actually involves levees that
were proposed 100 miles north of New Orleans that would have
involved the digging up of the wetlands there that actually
prevent flooding.
While we were not opposed to the levees per se, we were
opposed to the source of the fill material to build the levees,
which was basically excavation of wetlands 100 miles north of
New Orleans. It didn't have really anything to do with New
Orleans at all.
On the heels of Hurricane Katrina where there is widespread
distrust as to whether government can protect the public, it is
vital that we have in place mechanisms to hold government
accountable. There are right ways and wrong ways to design a
highway or even to build a levee. By ensuring that there is
good science and local input, the government is much more
likely to get it right.
Another allegation leveled at NEPA, and Senator Wagner made
this point, is that it has delayed energy development projects
that have resulted in gasoline price spikes and also shortages
of natural gas experienced as a result of Hurricane Katrina.
In its September 8 statement, this Committee quoted you,
Congresswoman McMorris, as stating, ``Throughout the NEPA Task
Force we have heard from numerous industries that expensive and
time consuming legal and procedural delays are preventing
energy production and construction projects.'' Again, this is
where I would strongly suggest that there be an analysis with
regard to whether or not NEPA is actually involved.
The unprecedented drilling boom that is going on right now
in the country indicates that, far from NEPA being an
impediment to oil and gas development, it appears that there
are fewer and fewer environmental safeguards in place to assure
that exploration and development take place in the appropriate
places with appropriate environmental precautions.
Meanwhile, industry profits are at an all-time high, as we
all know, and the numbers clearly show that the National
Environmental Policy Act is not standing in the way of energy
production. Let's look at some of those numbers.
The Bureau of Land Management has issued thousands more
drilling permits than the industry can actually drill. In 2004
BLM issued a record number of drilling permits on Federal
lands, particularly in the west, a total of 6,052 permits. But
the industry only drilled 2,702 of those areas that had been
authorized for drilling.
Natural gas production from Federal onshore lands has
significantly increased over the past decade. Natural gas
production from onshore Federal lands has more than doubled in
1992--since 1992, and between 2003 and 2004 there was an
increase in western lands of 42 percent.
I might want to mention, I actually got a call from an
official with Chesapeake City who--and that is why you've got
this Black Bear landfill issue here, recognizing that in many
instances there are impacts on Federal properties like the
Great Dismal Swamp where, in fact, NEPA does not apply, and
they wish it actually had.
Ms. McMorris. Mr. Besa, I really do have to ask you to wrap
up.
Mr. Besa. OK. Well, I'll do that. Thank you.
In conclusion, under the guise of speeding up projects,
some want to waive environmental review requirements and shut
people out of the decisionmaking process. As Americans
committed to a democratic process, we cannot let that happen.
We can't let public officials in Washington, D.C., decide,
without citizen involvement, what happens here in our own
backyard. NEPA is about democracy and open government. It is
not about delay. Thank you very much.
[The prepared statement of Glen Besa follows:]
Statement of Glen Besa, Appalachian Regional Director,
Sierra Club
Madame Chairwoman, Members of the Task Force on Improving the
National Environmental Policy Act.
My name is Glen Besa, and I am the Appalachian Regional Staff
Director for the Sierra Club. I am representing the Sierra Club today.
My business address is 6 North 6th Street, Richmond, VA 23219. I
appreciate this opportunity to appear before you.
Look before you leap. It's a good lesson we all learned as
children. It's just common sense to think ahead about the consequences
of the actions we take.
And right now that's what the National Environmental Policy Act
requires the federal government to do. Before it builds a highway near
your home or trucks nuclear waste through your neighborhood, the
government must tell you, ask your opinion and consider alternatives.
That's how democracy--government of, by and for the people--is supposed
to work. It is no accident that the most progress in protecting the
environment and ensuring citizens' rights to clean air and clean water
have occurred in the United States and other democracies.
The National Environmental Policy Act has played a key role in
America's conservation leadership. A landmark law that puts people
before politics, values science over short-term thinking, and respects
democracy more than dollars, it was signed into law in 1970 by
President Nixon. Thanks to NEPA, every American can expect major
federal actions ``oil drilling, highway construction, logging in our
National Forests, and so on--to be subject to scrutiny and review. NEPA
doesn't prevent those activities--it only says that people are entitled
to have the best information possible about how the environment will be
affected and that less harmful alternatives should be considered.
And under NEPA, when the federal government doesn't do its job
well, citizens have the right to petition their Government for redress.
At the heart of NEPA is its requirement that alternatives must be
considered--including those that will minimize possible damage to
public health, the environment or quality of life. Adequate review of
projects at the front end saves time and money in the long run, since
it lessens the need for difficult remedies to fix big mistakes. Because
NEPA ensures balance, common-sense and openness in federal decision-
making, it is an effective tool to keep ``Big Government'' in check.
Most projects sail through the NEPA process without undue delay.
Big projects with major environmental impacts take longer just as does
their planning process. In fact, the NEPA review has become an integral
part of the planning process for federal agencies.
Too often, agencies, under political pressure, are tempted to cut
corners to accomplish jobs more quickly. But cutting corners can have
disastrous consequences, especially when it comes to spending taxpayer
money on projects that might harm citizens or their environment.
As I stated before, NEPA does not stop projects. If a project does
not proceed through the NEPA process it is either because in the course
of the NEPA analysis it was determined by the agency that the project
lacked sufficient merit or because the agency conducting the NEPA
review did not do an adequate job. In the latter case, the agency may
be ordered by a court to go back and consider elements or impacts of
the project that it had ignored or omitted.
Consider a recent example. Just this month the Fourth Circuit Court
of Appeals, a circuit not known for its environmental activism, ruled
that the Navy failed to take a ``hard look'' at the environmental
impacts of its proposed Outlying Landing Field in eastern North
Carolina. This jet training facility would be located adjacent to the
Pocosin Lakes National Wildlife Refuge, in the heart of the Atlantic
migratory bird flyway, posing a severe safety risk to Navy pilots and a
serious threat to large flocks of migratory birds such as tundra swans
and snow geese. Proximity to the Refuge, which Congress created to
protect these migratory birds, was a key factor in the Court's ruling.
The Navy's own documents further showed that an existing facility in
southeastern Virginia meets the Navy's needs, yet, responding to
political pressure, the Navy ``reverse engineered'' the process and
mischaracterized scientific studies to justify the new OLF in North
Carolina. As the District Court Judge, Terrence Boyle, observed,
``NEPA's purpose is--to foster excellent action.--The very purpose of
the environmental due process afforded by NEPA is eradicated if a
federal agency makes a decision without proper consideration of the
environmental impacts of the proposed project.'' The OLF is opposed not
only by conservation groups but by the counties where the field would
be located, farmers whose land would be taken for the field, and by
property rights advocates.
Let me share another example of a project that just received a
permit from the Corps of Engineers. In Virginia, the proposed King
William Reservoir, a 1,500 acre drinking water reservoir, would be
constructed near native American lands and would impact the native
American community by pumping water from the Mattaponi River, which has
long supported the tribe's culture with a rich supply of shad. Pumping
water from the coastal plain may irreparably harm the fragile shad
fishery as well as the culture it supports. The reservoir also would
wipe out over 300 acres of a unique wetland complex, the largest
authorized loss of wetlands in the mid-Atlantic in the history of the
Clean Water Act. Through the NEPA process, the U.S. Army Corps of
Engineers discovered that the demand for the reservoir was
substantially less than originally asserted and could be met in other
ways. Even the Mayor of Newport News, a major proponent of the project,
recognized the value of the NEPA process for clarifying the true demand
for drinking water. The Corps initially denied the permit for the
reservoir, although the permit eventually was granted just last month.
I want to add that this project was initiated with contract between the
City of Newport News and King William County. However, it was not until
the initiation of the NEPA process that King William citizens including
the local Native American tribes learned of this locally unpopular
project.
It is most unfortunate that some view NEPA, the information
gathering and sharing, the public participation, as an obstruction to
getting federal projects completed and permits issued. Recent
statements in the media have attempted to link the flooding in New
Orleans and high gasoline process to the application of NEPA. I would
like to use my remaining time rebut these allegations.
The last few days have seen an attempt by some to blame
environmentalists for the disaster that struck New Orleans. At issue is
the role that conservation groups played in two cases--one almost 30
years ago--involving levee projects proposed by the Army Corps of
Engineers. The following is a quick summary of those projects and an
accurate account of the role that those groups played.
Save Our Wetlands v. Rush--1977
In 1977, the Army Corps of Engineers was told by a federal judge to
look at the impacts of a massive levee project it had proposed. Nearly
three decades later, the Corps has never done that work and instead
chose to abandon the project altogether.
The proposed project would have built a 25-mile long barrier from
the Mississippi border to the Mississippi River. Communities around
Lake Pontchartrain and local fisherman opposed the project because of
the massive impact it would have had on the economy and environment in
the region. Those groups had advocated building higher levees as a
simpler and safer alternative to the Corps' plan.
After the Army Corps of Engineers refused to evaluate the impacts
of its proposed project and consider ways to reduce them, Save Our
Wetlands filed suit and secured an injunction from U.S. District Judge
Charles Schwartz, Jr., who concluded that the region ``would be
irreparably harmed'' if the barrier project was allowed to continue and
chastised the Army Corps of Engineers for a shoddy job. The Judge
required the Corps to properly study its proposed massive new levee
construction project before moving forward.
The Corps has never bothered to do the work despite having nearly
30 years to do so.
In the 1977 case conservation groups simply asked the government to
look before it leapt and to make sure that local citizens knew what
their government had been planning in their backyard.
Mississippi River Basin Alliance, et al. v. H. Martin Lancaster--1996
This 1996 lawsuit involved levees that were 100 miles north of New
Orleans, did not breach after Hurricane Katrina, and had nothing to do
with the flooding.
In addition, in the suit filed by Sierra Club, American Rivers, the
National Wildlife Federation, Arkansas and Mississippi Wildlife
Federations, and the Mississippi River Basin Alliance, these groups did
not oppose raising the levees; they opposed the destruction of wetlands
for construction material.
These are the very sort of wetlands that we needed more of when
Katrina struck. The impacts of the storm surge were clearly exacerbated
by the loss of coastal Louisiana wetlands. Wetlands act as a buffer for
coastal areas, soaking up the storm surge. According to the Army Corps
of Engineers, three-square miles of wetlands can reduce storm surge by
a foot.
The U.S. Fish and Wildlife Service, Environmental Protection Agency
and the Louisiana Legislature all urged the Corps to look at how the
proposed project would have impacted the area. It refused to do so.
The case was settled, with the Corps of Engineers agreeing in 1997
to a supplemental environmental impact statement. According to a 1997
Baton Rouge Advocate article, ``Corps officials said it will take them
30 years to finish the levee work. That much time is required because
funding is lacking for the projects--not because of the new
environmental study, called an environmental impact statement.''
These accusations mistake efforts to ensure good government
decisions with a tragedy that had everything to do with bad judgment on
the part of our government leaders. In each of the legal cases cited so
far, conservation groups simply asked government agencies to look
before leaping into projects that would have had major impacts on
people and the natural systems on which they depend and to give local
communities what our democracy requires: a say in projects coming out
of Washington. That isn't just common sense; that's also the law.
On the heels of Hurricane Katrina, when there is widespread
distrust as to whether government can protect the public, it is vital
that we have in place mechanisms to hold government accountable. There
are right ways and wrong ways to design a highway or even build a
levee. By ensuring that there is good science and local input, the
government is much more likely to get it right.
Another allegation leveled at NEPA is that it has delayed energy
development projects which has resulted in the gasoline price spikes
experienced as result of Hurricane Katrina. In its September 9th
announcement of this September 17 hearing, the Task Force release
quoted Chairwoman McMorris as stating ``Throughout the NEPA Task Force
we have heard from numerous industries that expensive and time
consuming legal and procedural delays are preventing energy production
and construction projects.''
The unprecedented drilling boom in the United State indicates that,
far from NEPA being an ``impediment'' to oil and gas development, it
appears that there are fewer and fewer environmental safeguards in
place to assure that exploration and development take place in the
appropriate places with appropriate environmental safeguards.
Meanwhile, industry profits are at an all-time high. The numbers below
clearly show the National Environmental Policy Act is not standing in
the way of energy production.
The BLM has issued thousands more drilling permits than the
industry can actually drill.
In FY 2004, the BLM issued a record number of drilling
permits on federal lands--6,052.
But the industry drilled only 2,702 new wells on those
permits.
Natural gas production from federal onshore lands has significantly
increased during the past decade.
Natural gas production from onshore federal lands has
more than doubled since 1992.
And between 2003 and 2004, production increased from
2.226 TCF to 3.133 TCF--a 42% increase in one year on western federal
lands alone.
While I am discussing energy related issues I'd like to acknowledge
that over the past several years, we have seen successive records set
in coal production. Present in our audience today is Maria Gunnoe of
Bob White, West Virginia. Ms. Gunnoe did not have the opportunity to
testify today but if she had she would have told you of the devastating
floods that she and her neighbors in southern West Virginia experience
as a result of mountaintop removal coal mining. Having had her property
flooded 7 times in the last 5 years, Ms. Gunnoe would have asked this
Task Force and the Congress for more protection not less. The
depopulation of southern West Virginia as a result of energy
development is an under reported story. Unlike Hurricane Katrina, it is
a slowly unfolding tragedy, affecting people, communities and the
economy. It is the kind of environmental and social tragedy we do not
want replicated along our coasts or in other places that might have
energy deposits.
I also want to note that the controversies swirling around drilling
in the Arctic National Wildlife Refuge and drilling off our coasts are
pitched political battles in the Congress, not the result any
bureaucratic delay.
In conclusion, under the guise of speeding up projects, some want
to waive environmental review requirements and shut people out of the
decision-making process. As Americans committed to a democratic
process, we can't let that happen. We can't let public officials in
Washington, D.C. decide--without citizen involvement--what happens here
in our backyard. NEPA is about democracy and open government--not
delay.
Thank you,
______
Ms. McMorris. Thank you.
Mr. Stiles.
STATEMENT OF WILLIAM A. ``SKIP'' STILES, JR.,
WETLANDS WATCH
Mr. Stiles. Hi. I am William A. Stiles, Jr., Skip Stiles to
everyone but insurance solicitors over the phone. Thank you for
holding the hearing, Madam Chairman. Congresswoman Drake, thank
you for coming into our community--into your community.
I am Vice President of Wetlands Watch, which is a local all
volunteer group. We are engaged in the conservation and
protection of wetlands, mostly through intervening in the
permit process at the State, local and Federal level. By
intervening, I mean we are lay citizens. We don't have lawyers,
and we aren't environmental professionals. We all have day jobs
outside the environment.
We look at permit applications and comment on them. We also
help educate citizens on how the laws work that affect them
with regard to wetlands. We work with regulators and with the
regulating community to try to find a better way to operate
these environmental regulations.
In this region, with such a large Federal footprint, on
land with Navy in a number of the cities in the region and in
the water--most of these are navigable waters, so the Corps of
Engineers controls much of the waterways--we are constantly
bumping into the Corps of Engineers and Section 404 of the
Clean Water Act, which is implemented through the provisions of
NEPA. So we have extensive experience with NEPA through this
process, and also through the process is involved in citing
some of the freeways and highways in our region which are
funded by the Federal Highway Administration.
In the process of this work we have come to rely on NEPA
because, as I say, we are work outside of the environmental
profession. We depend on the analyses that are done by the
professional staff of these agencies to show us how the
projects, either Federal projects or projects that the Federal
Government is permitting--how they are going to affect our
community, our quality of life, our property in this region.
We also depend upon NEPA to give us accurate warning when
somebody is up to something in our backyard that we should know
about. Some say that this is a burdensome process, but let me
give you an example out of West Norfolk here just across the
river where it actually provided the citizens of the community
of West Norfolk with advanced warning that there was a major
project going to affect their community.
Maersk Shipping is putting in a terminal just across the
river here. It is a $600 million facility. Because they were
dredging the bottom, they had to get a Federal dredging permit,
and that permit required an environmental assessment through
the provisions of NEPA.
Back at the end of that document was a secondary impact
statement that said 1500 trucks a day were going to enter, and
1500 trucks a day were going to leave this neighborhood of 100
homes over in West Norfolk. The only way those folks found out
that this was in the works was when we in Wetlands Watch
contacted them and asked them if they had--were aware of this.
They were not.
The city officials, of course, were aware of this traffic
estimate about a year and a half beforehand, according to
documents that I had. The bottom line is that these citizens
raised a ruckus, and the officials of Portsmouth and
representatives of the largest shipping company in the world
had to come into their community in an evening session in their
community church and explain to them eye to eye exactly what
was going to be happening in their community as a result of
this permit.
This was the first and only time that these citizens knew
that this was going to be happening, and it was because of the
analysis that was performed by the Corps of Engineers and the
publication of that analysis in the environment assessment that
they held this meeting.
The permit went forward. We were all looking for a full
environmental impact statement. It went forward with an EA. It
was a $600 million project. It dredged 10.3 million cubic yards
of bottom. It was the largest dredging permit that ever went
through without an EIS, went through in about a year and a
half.
So NEPA was not unduly burdensome in this case,
unfortunately, from our perspective, because we felt that there
were a number of environmental impacts and secondary impacts
that should have been analyzed. But it illustrates the point
that, for many citizens in this community, NEPA and its
provisions has implemented, at least for us, through the Clean
Water Act and by the Corps of Engineers, is a necessary
safeguard, frequently the last line of defense that we have to
know that either the Federal Government or someone seeking a
permit from the Federal Government is going to be proposing
environmental impacts that will have significant and
detrimental impact on our community.
It does level the playing field, but we feel in a positive
way. I know that many in industry feel that it levels--it is
leveling the playing field in the wrong direction, but again
for the common citizen who doesn't have access to the
professional expertise of Mr. Kelman's society members, we have
to rely on the Federal Government to do these analyses and do
them completely, and do them early.
I would make an observation based on my experience with
Wetlands Watch and with the 22 years that I've spent on the
professional staff in the House of Representatives. In my
experience, most of the problems with NEPA could be broken down
three different ways.
Sometimes NEPA is not involved at all. The NEPA issues are
not involved at all. For example, the offshore oil and gas
drilling issues on a moratorium and an Executive Order, NEPA is
not yet involved in that.
The issue of the wind farms off the Eastern Shore: The
Corps of Engineers asked the applicant for that permit to
provide it with information as to how he can explain the fact
that the electricity being generated would overpower the grid
of the Eastern Shore, because they hadn't done the work to
actually move the energy any farther to the Eastern Shore.
The applicant, who was not going to be operating that
system, is, I guess, coming up with that answer, because the
permit process has been suspended pending further information.
So sometimes NEPA is not involved at all.
At other times, it is the underlying statute. In the case
of Tolich Ditching, for example, it is a dispute with the Clean
Water Act, and the fight is taking place within the boxing ring
that is NEPA; and folks don't like the Queensberry Rules within
that boxing ring, but the actual dispute is back in an
underlying statute, either there or the Endangered Species Act.
Sometimes, oftentimes, as Mr. Kelman mentioned, the problem
is that the Federal agency simply does not have the expertise
or resources to properly implement the statute.
So I would be careful. You know, my daughter rolls a white
gumball across the carpet. It picks up a whole lot of stuff it
doesn't want. So in your analyses here, be careful to parse out
those things that are truly the problems and those things that
are in the underlying statutes.
Thank you very much.
Ms. McMorris. Very good.
[The prepared statement of William A. Stiles, Jr. follows:]
Statement of William A. Stiles, Jr., Vice President,
Wetlands Watch
Madam Chairwoman, Members of the Task Force, thank you for inviting
me to testify on the role of the National Environmental Policy Act
(NEPA) in the Mid-Atlantic States.
My name is William A. Stiles, Jr. and I am vice president of
Wetlands Watch, a regional, non-profit, all-volunteer organization
dedicated to protecting and conserving wetlands in Virginia. Wetlands
Watch does not have paid staff and receives limited grant funding. We
work with local citizens, regulators, and the regulated community to
educate them about the need to conserve wetlands and the ways in which
the regulatory system works to protect wetlands disturbance. I am also
vice-president of the Virginia Conservation Network, a coalition of
over 100 Virginia conservation organizations.
Much of Wetlands Watch's work involves direct intervention in the
wetlands permitting process. This brings us into constant contact with
NEPA and its implementation in various agencies and statutes, mostly
the provisions of section 404 of the Clean Water Act as implemented by
the United States Army Corps of Engineers (USACE). We also deal with
NEPA-like provisions in the state laws and regulations administered by
the Virginia Department of Environmental Quality and the Virginia
Marine Resources Commission; two agencies that work with the USACE on
joint permit applications for disturbances to tidal wetlands. Finally,
we have been involved with NEPA as it is implemented through Federal
Highway Administration project approvals.
Our group is made up of common citizens who all have ``day jobs''
outside of environmental organizations. We see NEPA as a tool for
citizens such as ourselves to be involved in environmental regulatory
decisions affecting our community and our lives. Without NEPA, we would
be powerless against big government or big corporations proposing
activities that would disturb our region's environment.
The federal government directly or indirectly controls much of this
region's land area. The federal government owns forty percent of
Norfolk and sixty percent of Portsmouth. Large expanses of Virginia
Beach and Chesapeake are under federal government ownership as well.
Navigable waterways, which thread throughout this region, are under the
control of the USACE.
NEPA is one major protection available to the citizens of this
region when the federal government is considering projects affecting
our lives, property, and communities. NEPA guarantees that citizens can
see and comment upon analyses of the project's environmental costs and
economic benefits, its environmental impact, alternatives to the
project, and long-term impacts on the community.
Some view this process as unnecessary or burdensome. For the
residents of West Norfolk in the City of Portsmouth, NEPA was their
only hope.
West Norfolk is a small community of about 100 households of
working class residents in Portsmouth. They are just upriver from the
new Maersk Marine Terminal that will bring 1,500 trucks a day through
their neighborhood. The off ramp to accommodate that traffic will
involve the condemnation of three homes in the community.
The residents of this community only found out about the truck
traffic because of the draft Environmental Assessment (EA) done to
allow the dredging of the Elizabeth River near this new Terminal. The
details of this plan were in the secondary impacts section of the draft
EA, an analysis required by USACE's implementation of NEPA in its
regulations and guidelines. These facts were known to city officials
more than a year before the Maersk permit was filed, but were not
shared with the residents of West Norfolk.
When the residents of West Norfolk were made aware of the draft EA,
days before the public comment period expired, they asked for a delay
in the permit approval and wanted public hearings on the traffic
impacts to their community. In lieu of that, a delegation of Portsmouth
city council members and Maersk representatives held a civic meting in
a community church in West Norfolk to meet with the citizens.
I was at that meeting and my faith in democracy was restored to see
insensitive public officials and representatives of the largest
shipping company in the world meeting with the citizens of this small
community as equals. The Maersk representatives explained in public for
the first time what was going to happen to these people and their
neighborhood.
That port project was approved and the dredges are working now not
far from here on the Elizabeth River. The approval time from
application to a finding of ``no significant impact'' was less than one
year, this for one of the largest dredging projects in the Nation,
involving 10.3 million cubic yards of material. Wetlands Watch and the
citizens of that community wanted the project to move to a full
Environmental Impact Statement, but we did not prevail.
However, despite our disappointment in the USACE decision to issue
the permit without full review, in that one evening in West Norfolk, we
had a small victory. The facts revealed by the NEPA process allowed
those folks in West Norfolk to compel politicians and corporations to
come to them and explain themselves.
I don't know who would want to ``streamline'' or change this
process. Democracy was well served under NEPA that night. I imagined
Thomas Jefferson looking down and chuckling at the scene.
I can cite other examples of NEPA making citizens in this region
aware of proposed projects looking to take their property or adversely
affect their quality of life. I can also cite examples of where NEPA
was not fully followed and we are now paying dearly for it, such as the
$70 million + restoration effort on the Lynnhaven River.
The Task Force background material also mentions affordable energy
and the effects of Hurricane Katrina. The press release issued by the
Task Force on September 9, 2005, mentions improving NEPA to ``prevent
these barriers to energy production and development in the Mid-Atlantic
states.''
I am aware of proposals to allow the drilling of gas and oil off
the mid-Atlantic coast, drilling now prohibited by a congressionally
imposed moratorium and a Presidential executive order. However, lifting
this moratorium does not involve NEPA, but rather passage of
legislation and the rescinding of an executive order. This action would
involve considerable political capital since most of the elected
officials in the mid-Atlantic region oppose lifting the moratorium.
This year a bill was passed by the Virginia General Assembly
endorsing offshore gas and oil drilling. The terms of the legislation
were not publicly debated during passage due to legislative sleight of
hand. In fact, the city most affected by this legislation, Virginia
Beach, did not even know the General Assembly had passed such a bill
until they were contacted to ask for Governor Warner's veto of the
bill.
The only public debate on the terms of this offshore gas and oil
drilling bill was in the Virginia Beach city council chambers, as
advocates and opponents had to explain their positions on the bill. The
Virginia Beach hospitality industry was opposed, as were many citizens
groups. In the end, Governor Warner vetoed the legislation.
My point in bringing this up is to illustrate the shortcuts that
can happen in government processes, shortcuts that exclude regular
citizens. NEPA provides a safety net, a guarantee that any significant
federal action, or federal action taken on behalf of private industry,
will require analysis, public notice, and comment. To ``streamline''
NEPA is to threaten the guarantee that our region's citizens, even if
excluded from legislative decisions affecting our natural resources, as
they were this year with the natural gas drilling legislation, will
always be included in the final decision on permitting the use of those
natural resources.
Finally, on Hurricane Katrina and the role of NEPA I will comment
that I think it is more important to fix the problem than fix blame.
From my perspective, the problem is that the potential damage from a
storm increases with each acre of wetlands lost, and Louisiana loses
about 400 acres of wetlands per week. Department of the Interior
information cites a value for hurricane protection from wetlands in
Louisiana of between $1600 and $1700 per acre.
USGS's Louisiana Coast website mentions the threat to oil and gas
pipelines from the loss of wetlands and barrier islands on the Davis
Pond website:
``This degradation of the landscape not only increases exposure of
pipelines to the periodic ravages of storms and hurricanes, but to the
constant erosive force of waves that now travel unimpeded across vast
stretches of open water that were once sheltered.''
The point is driven home by this statement, so relevant to today's
hearing, made by Richard Greene, the Regional Environmental Protection
Agency Administrator for Region 6, which includes the Gulf Coast:
``No other place on Earth is disappearing as quickly as the
Louisiana coastal ecosystem, where a half-acre of land turns to open
water every 15 minutes. The impact of such a loss includes destruction
of nationally important energy production infrastructure and the
possible relocation of over 2 million people. At risk are approximately
30,000 oil and gas production wells, some 20,000 miles of offshore
pipelines, and thousands more miles of pipelines inland. The decline of
the coastal marshes would dramatically effect the integrity of a
national energy infrastructure, as well as nationally significant
commercial fishing, transportation, and recreation industries.''
So to come full cycle on my remarks today, it seems that the
conservation and protection of wetlands is one of the most important
things we can be doing to protect our economy. And that effort involves
the rigorous application of the National Environmental Policy Act.
In Hampton Roads, wetlands provide sediment and nutrient reduction
for free. Once wetlands are removed, we have to pay for the
environmental services they provided, through increased waste treatment
fees, loss of water quality-related economic activity, and through
direct payments for remediation efforts, such as on the Lynnhaven
River. Nationally, especially in the Gulf Region, wetlands provide
other services, such as buffering from violent storms. We need to
conserve and restore wetlands to better avoid the economic shocks such
as we are experiencing now.
NEPA forces us to do some of the analyses that insure we adequately
value wetlands. NEPA requires that we look at ``the relationship
between local short-term uses of man's environment and the maintenance
and enhancement of long-term productivity, and any irreversible and
irretrievable commitments of resources which would be involved in the
proposed action should it be implemented.''
I am left to conclude that if we had done all that NEPA required,
we would have made different decisions along the way--both in our
region and nationally--that would have lessened the bills we are paying
today.
Thank you again for the opportunity to present my views today on
this very important issue.
______
Ms. McMorris. I just want to thank everyone for being here,
each of the panelists, for taking the time to put together
testimony, thoughtful testimony from your experiences and
backgrounds.
At this time, we are going to start the question and answer
period. Just before we do, I want to make a couple of comments.
In 1970, NEPA was signed by President Nixon into law. It
was the first of many environmental laws that were passed in
this country, and today we are simply asking the question, can
we do better? We all share the goals of having clean air and
clean water and a healthy environment, and the question before
us is if we can accomplish those goals in a better way.
NEPA is the process by which we look in making those
decisions, and no one is suggesting that we do away with public
participation. I value public participation. I value local
input, and encourage people to be involved. I think that the
best decisions are made when more people are involved.
The standards, the environmental standards, are actually
laid out in other laws, whether it is the Endangered Species
Act, the Clean Water Act or the Clean Air Act. NEPA is simply
the process by which we take into consideration the impact, the
environmental impact, and make the best decision possible.
This has been our fifth field hearing that we have held
across the country, and it has been disappointing that some--
and it was characterized in the press yesterday that this was
possibly a dog and pony show. I personally invited Mr. Besa to
be here today, and at every hearing around the country we have
invited either the Sierra Club or other environmental groups to
be participants on this panel. We encourage their
participation.
We have also invited people from a whole host of other
backgrounds and industries that have been impacted by NEPA. We
have been welcoming that input from everyone.
Some of our witnesses today suggested that there has been a
lot of talk about Hurricane Katrina and who is to blame. This
Task Force has not pointed the finger at anyone. We have
acknowledged that there are potential roadblocks and
bureaucratic red tape that NEPA may have created prior to the
hurricane, but I believe there will be a more appropriate time
and place for us to explore those issues; and just as some
legislators must look at what we can do better to respond to a
disaster, heaven forbid, we also need to look at what we can do
to better prevent a disaster the next time.
If I have learned anything through this process, it is that
NEPA is certainly the law for allowing public input in
environmental consideration, but it is not the law to be used
to simply stop or stall projects simply because you disagree
with it. So that is what we are trying to accomplish. I
appreciate everyone being here. I appreciate the panels for
being here.
I am going to turn it over to Ms. Drake to start the
questioning. I have to sneak out just for a couple of minutes,
but I will be back. Thank you very much.
Ms. Drake. Thank you, Chairman McMorris. First of all, I
would like to point out to you that there are sheets in the
room that, if you would like to fill one of these out and give
us your comments--Otherwise, as Chairman McMorris told us, you
can submit comments by e-mail, letter, however you would like
to do it, but this may make it easier for you, if you would
like to do it today.
I would like to start with Senator Wagner, because I know
that he is on a tight timeframe, and I thought we would ask him
first in case he does need to leave.
Senator Wagner, can you tell us what took place in the 2005
General Assembly session regarding the issue of natural gas, if
there are things you are working on now, and what you think may
take place in '06?
Mr. Wagner. Congresswoman Drake, let me----
Ms. Drake. Oh, you need a mike.
Mr. Wagner. I need a mike. Let me respond by giving a
little background on how we came to the 2005 General Assembly
session. We have a joint commission studying the needs of
manufacturers throughout Virginia. We felt that was absolutely
essential, because we have lost 70,000, as Mr. Holloway has
implied, at the paper mill. We have lost 70,000 manufacturing
jobs around Virginia.
Ms. Drake. Senator Wagner, I asked to serve on that, and
then I ended up in Congress. So I apologize for not being there
with you.
Mr. Wagner. Well, we certainly missed your participation,
Congresswoman Drake, but your support of it while you were
there was certainly encouraging.
We all recognize that. We all recognize how important
manufacturing jobs are. They are the jobs that represent, as I
put it, with lack of an MBA of turning dirt into money. Most
people call it value added or those that are not just service
economy, but actually inject money into the economy of this
country.
So when you lose 70,000 jobs in a relatively small
manufacturing state like Virginia, it causes you a great deal
of concern. So we delved into the reasons why. Now some of them
are out of our ability to control, things like furniture and
textiles. We simply cannot compete against the labor rates that
we see offshore, particularly in China and certain other places
in the Orient, India being one of those. However, there are
several industries that we remain competitive in, and do.
The other issue we found is that the manufacturing
industries are heavily reliant, as you might imagine, on
energy. One of those issues that they are very reliant on, more
so than perhaps we think of in home heating, is the issue of
natural gas. It is extremely important in many manufacturing
processes.
If you mention the paper and pulp industry, it is heavily
reliant on natural gas. Anybody involved in the machining and
tools that involves heat treating processes, very heavily
reliant on natural gas. In fact, in Hopewell, Virginia, the
Honeywell plant consumes 50 million cubic feet of natural gas a
day and produces primary product as nylon and fertilizer.
For those that may not be aware, natural gas is a basic
building block, not a heating element but the raw material that
is ultimately converted into fertilizer through a chemical
process. So now when we see the exorbitant rates we are seeing
in natural gas, not only has it affected manufacturing jobs,
obviously those that rely on heating their homes, but it also
directly impacts the agricultural community due to the high
cost of fertilizer, not to mention the high cost of just
operating machinery to do that.
As you are aware, Congresswoman Drake, that agricultural
products represent a significant export from this country. It
is one of the few areas where we do have a positive balance of
trade, and it is one of those areas that impacts virtually
every farmer due to the skyrocketing cost of fertilizer.
So we felt it was very important to solve, to see what we
could do in the Commonwealth of Virginia to resolve the issues
of natural gas or at least to, hopefully, mitigate the prices,
because it is so essential to so many jobs, as Mr. Holloway has
already said.
In the course of our investigation, through the Federal
Government, Department of Interior conservatively estimates
there's some 30 trillion cubic feet of natural gas located
offshore in the Atlantic Basin.
Then we looked in, is there a precedent? What we found
already is that Canada is already offshore in the Atlantic
Basin, successfully recovering 500 million cubic feet of
natural gas per day, and supplying some of that back to the
United States, interestingly enough, just off of Nova Scotia,
just off the, if you will, righthand upper corner of the map
here.
Based on that analysis and looking at it, plus what we've
seen as the outstanding safety record of the offshore industry,
we submitted legislation, because there is a Federal moratorium
on the Atlantic Basin in terms of just even surveying, much
less exploration and development of the resource. Initially,
the bill was submitted as just conducting the surveying. Can we
find out if resources are available off there in commercially
recoverable amounts?
As that bill wound through, through calls I've got from
Washington, in fact, and from the House Resources Committee
talking about some proposed legislation in Washington that had
to do with SEACOR--and the interesting thing about SEACOR, it
stands for State Enhanced Authority over Coastal and Offshore
Resources, gave Virginia actually veto power out to, depending
on the version of the bill you were looking at, 40 to 60 miles,
including everything. It could veto any type of exploration,
which is currently a power Virginia doesn't enjoy. Virginia
enjoys that power out to three miles. Beyond that, Virginia has
no say. We thought that was probably a good idea that Virginia
had that say-so.
The other interesting aspect of that is that royalty
payments that derive from those that would explore and develop
those resources that are paid to the Federal Government. For
the first time the Federal Government said we are willing to
share those resources with the States, and that represented--A
conservative estimate from your Committee, Representative
Drake, was $3.5 billion to the Commonwealth of Virginia over 20
years.
We thought that was an interesting proposal, that here we
have something that is reliant on our manufacturers, that helps
our agricultural community, that has a proven safety record of
some of the cleanest--well, the cleanest burning fossil fuel,
natural gas, may be available in commercially recoverable
amounts off the coast of Virginia, and provide a new source of
revenue that doesn't cost the taxpayers any money. We thought
that was a pretty good win idea.
We had the legislation modified. It passed the House. It
passed the Senate. Ultimately, it went on to the Governor where
the Governor subsequently vetoed it, not because of the
objection to offshore drilling, I might add, but because, as he
stated, he wanted to study the issue further and wanted further
information, and he felt it was inappropriate that the General
Assembly--The actual bill is directed to the Virginia Liaison
Office to do that.
So that was the legislation as it transpired through that.
I will say that the Governor is continuing with the study. I
think the results of what the Governor is finding is very
similar to what our manufacturing committee found. But since
that time, we have taken a look at, and have been working for a
number of months pre-Katrina, on legislation that basically was
a Virginia energy bill.
We have tried to look at some of the things that we felt we
read in the Senate--or the Federal energy bill that's recently
passed, but we are taking a rather unique approach in 2006. We
are talking about it now.
The legislation is still in a draft form and being worked
on at this point in time, but much of what you've heard from
each and every person up here, I believe, was when the
applicant applies, when the applicant pushes forward with, when
the applicant does this.
One of the approaches that we are looking at here in
Virginia and taking a very serious look at--and we have heard
Senator McCain as he talked, and we are certainly one of the
aspects of this bill, says it is the policy of the Commonwealth
to support renewable energy. It will be the policy of the
Commonwealth to support, if you will, nuclear power generation.
Those types of things will be put in there, but we are
going to take it a step further, because we feel it is
important that, if it is a policy of the Commonwealth to
support renewable energy, that we also come through and
evaluate Virginia and say where in Virginia we might think that
is appropriate to establish that, whether it be wave driven
generation capability, whether it be wind driven generation
capability, whether it be those types of things.
We think it is appropriate that we analyze Virginia up
front as a government, not as a permittee but as a government,
and come back and say we think these locations are OK. It
doesn't relieve any applicant from putting them in the permit
areas, but we will say that Virginia has done a number of
legwork with the Sierra Club, with the Wetlands Watch to say is
it appropriate in these areas? Do we want to support it?
We think it is the policy of the Commonwealth to support
nuclear power. We have an outstanding track record in Virginia
at Surrey, North Anna nuclear power plants to do that. We
recognize that it's zero emissions. We recognize there are some
problems with it, but given some of the alternatives, that may
be the way to go.
If we think that is the right policy decision to do that,
we ought to step forward in Virginia as our regulators, as our
government, and say we think it is probably appropriate that,
if we want to pursue that in Virginia, that you probably ought
to look at these areas to do it. Doesn't relieve you of any
permitting requirements. Doesn't relieve you--and we certainly
can't impact the Federal Government. But as we listened to
Senator McCain in Washington talk about, and highly supportive
of--may not support the approach, but saying that 10 to 15
percent, whatever the policy was, of every utility needs to be
renewable source energy and, if not, then you are going to come
up with a quantity of money to pay back to the Department of
Energy for not meeting that goal.
We think it is incumbent that, if the Federal Government
wants to make that policy, the Federal Government also says,
and here is where you can do it. Here is where we think it is
appropriate for you to do it.
I think it is not enough for us policymakers to say you
will meet these goals, you will meet these criteria, but I
think in this day and age it is very important that we also
establish where it is we think we can do it.
So I'm sorry. It's a bit long-winded answer to your
question, but I wanted to--It was a multiple answered question,
and I felt it was appropriate to do that. And I'm sitting back
one, and I know you know that, and I know everybody here, and I
can--you know, the make-up of the audience behind us, and I see
that. But the overriding issue that I am hearing within my
district right now is the cost of energy, the affordability and
availability of energy, and the real policy decisions.
I think we really look forward to a winter of--and I have
already talked to Dominion Resources. They say that their
account that they have set aside for money to help the elderly
and those that can't afford energy is going to be tapped, and
they don't know if they can replenish the kind of money to
provide the subsidies. But we are looking forward in the short
term to a real, real crisis this winter with home heating.
You have heard some instances on natural gas, the
availability. Typically, this time of the year they are
reliquefying it to store it in the northeast to meet the
demands. That is not ongoing to the tempo that I would like to
have right now to meet those demands. So we run a serious
problem, but I would like to close with a question.
Basically, I have heard from everybody, NEPA is not the
problem, NEPA is not this. We have a systemic problem. We would
not have energy prices where they are today. It spiked to 11.50
per thousand cubic feet post-Katrina, but it had already risen
from $1.50 to $2.00 or $2.50 per thousand cubic feet in 2000-
2001 to 6.50 prior to Katrina, a threefold increase in
something that is absolutely essential for our economy, and now
spiking to 11.50.
We have a problem. Is NEPA part of it? May be. Probably. I
hear no. I hear no, but I also hear the same objections. We
have worked at length on the King William Reservoir, for
instance, a vitally needed water supply project. You have heard
some talk about that. I am not going to debate it, but there
are certain things we have to do, and the constituents
understand there is a problem now.
They understand there is a serious energy problem in this
country, and it needs to be solved short term, and we need to
look at the longer term, some of the things we've talked about,
about a hydrogen economy, moving toward hydrogen cells and
those types of things.
We had the ability to solve it. We had the resources. We
had the technology. We knew how to do it.
Ms. McMorris. Sorry, let me take--The question and answer
period is really between Ms. Drake and myself, and we will
continue as long as we would like.
Mr. Wagner. Thank you. So I don't want to go on, you know.
Obviously, the audience is just not in the mood to hear some of
the facts. Thank you.
Ms. McMorris. Thank you.
Ms. Drake. Well, Senator Wagner, before you finish up--
Madam Chairman, if it is all right--looking at Hurricane
Katrina and some of the other hurricanes that have moved
through the Gulf Coast, would you say that today's offshore
production is certainly much more environmentally acceptable
and that there was very, very little damage to our environment
with it?
Mr. Wagner. Well, I have heard when the bill was going
through, when we started in Virginia Beach there were several--
you know, you are going to have oil spills on the beach, and
you are going to have those types of things. The data that I
have received from the platforms, the platforms stood up very
well as designed. There were some problems in close to shore,
interestingly enough, but there was no spills that I'm aware
of.
I know the pipelines were done. They worked as advertised.
They were shut down at the bottom of the ocean. The shutdown
worked. I understand there are some pipeline problems, and they
don't want to bring those pipelines--bring the product to shore
along the pipeline from the platforms. They want to bring those
pipelines on line again until they are sure they are intact.
I will say there were significant spills associated with
Hurricane Katrina. I understand it is in the range of 44
million gallons. All that I am aware of that were caused were
from shoreside storage facilities, due to either levee breaks
or due to just a failure under the wind storms. The last data I
got was an e-mail stating--I think there were some 44 million
gallons from some 47 different sites, I think 10 or 11 I am
recalling from memory, where they considered major, in excess
of 100,000 gallons. But all that I saw were from shore products
and shoreside storage facilities.
You know, one of the considerations we may want to consider
if we are going site additional shoreside facilities, we might
want to pipe it inland and get it significantly away from the
shoreside, because the vulnerability of being so close where
there is a potential for flooding makes that a fairly likely
event, and one of the considerations that may want to go into
the policy is, when you do site new storage facilities, that
you site them amply afar away. It is easy enough to pipe a
product underground to a storage facility significantly inland
so you can avoid those types of problems in the future, and
look as we rebuild some of the infrastructure to perhaps
looking with that eye. But I understand that the spills are
fairly well contained and clean enough.
Ms. Drake. Thank you, Senator Wagner. I appreciate your
answers. Appreciate your being here. I thought it was
interesting you brought to our attention what we all did in the
early Seventies, which was the wood stoves and the fireplaces.
I got pretty darn good at those wood stoves, banking them down
to make them go all night. I would prefer not to do that again,
and I don't have a fireplace anymore. So we are going to listen
to you and watch you.
Mr. Wagner. Well, I can just--If it is an unaffordable
product or people are having trouble affording it, apparently,
as I read the newspaper, it would be the natural human reaction
to go out and start to buy the firewood, and then we need to
start asking ourselves as a policy, does a million fireplaces
produce more pollution in the air than a well regulated plant
that would not cause those to come on line and have to have
those million fireplaces?
Ms. Drake. Thank you.
Mr. Wagner. And I thank you again. And again, Madam
Chairman, I apologize. I have something else on my schedule,
and I need to go.
Ms. McMorris. Yes, I understand.
Mr. Wagner. Thank you so much.
Ms. McMorris. Thanks for being here.
Ms. Drake. Madam Chairman, I will yield back to you.
Ms. McMorris. Very good. I would just remind the audience,
this is a Congressional hearing, and everyone deserves the
respect that you would like to see afforded if you were sitting
right up here also. So I would just ask you to keep that into
consideration.
I wanted to--Feel free to excuse yourself whenever you need
to go, Senator Wagner. I wanted to move to Mr. Shafer.
Appreciate you being here from Louisiana. I wanted--You laid
out some recommendations, very specific recommendations as to--
in your testimony as to how you felt the NEPA process could be
improved.
I wanted just to ask you a simple question as to the impact
that you thought any of those recommendations may have on
public participation, if any of those recommendations would in
any way gut public participation.
Mr. Shafer. Not at all.
Ms. McMorris. OK. Second, could you just talk to us about
the time involved in developing an EIS and permitting a new
pipeline, and how long does it actually take to build on after
the permitting process is completed?
Mr. Shafer. I'll be glad to. Most of the major projects
take at least a year and a half to two years on the planning
side up front. That is before--And basically, usually the
applicant will go out and hold its own open houses, touch base
with the public in the area, you know, look at different
engineering scenarios that might satisfy the movement of the
product through the area.
So we look at various, oh, potential corridors, and it is
done in different ways by different companies. But essentially
that kind of flows into what you hear referred to at the
Federal Energy Regulatory Commission as the pre-NEPA and a
collaborative, cooperative approach.
Some of my suggestions that asked the Task Force to take a
look at would, I think, further streamline that and improve
that. It is not taking away from the public participation at
all. In fact, the team permitting idea actually opens it up
even more.
I have participated in a very large product where team
permitting was used, and it was used very effectively. We did
the entire EIS process in about 18 months, because we worked
two years up front using a team permitting. So I think there
are ways to look at it, not diminish it at all, but look at
opportunities and avenues.
I do have a--If I might show you a display. I've got a
chart.
Ms. McMorris. OK.
Mr. Shafer. This kind of gives you a visual impact. This is
a Millennium project, Millennium Pipeline. It actually starts
in 1997 and goes through year 2006. This project--What it is
reflecting here is basically the entire environmental approach,
not just the NEPA. But the NEPA approach is in here.
So just to give you an idea, you asked about timeframes,
and this gives you an idea of what we go through. We just
filed--On Millennium we just filed a--made an amended filing,
and it took up pretty much, just that filing alone, the trunk
of a car just to haul one set. So it's just a huge volume of
material and data.
Part of what our suggestions are, at least INGAA's
suggestions--Part of our suggestions deal a lot more with
taking a look at this collaborative and cooperative approach,
and see if there aren't some ways that, even at the Federal
level--and I know the FERC has made great strides in promoting
this, but getting all the agencies to look at--and I mentioned
it in my oral presentation--more of a simultaneous look, which
is the way NEPA was originally written, not a sequential where
a lead agency would get the material and then have to farm it
out to another agency, and it takes time for those comments to
come back, and people comment. Then it goes out to another
agency and then back to the lead agency.
What the FERC has promoted is there is a simultaneous look.
So we get all the issues out on the table. They are identified.
There are sensitive issues that can be addressed. Mitigation
can--Appropriate mitigation can be called for, and that's fine.
I think then we move forward.
Ms. McMorris. Would you talk to us a little bit about
natural gas prices? I understand we are going to be seeing some
significant increases. I've heard 71 percent type increases in
natural gas prices. Can you talk to us about Hurricane
Katrina's impact on gas storage?
Mr. Shafer. I can. It is steadily improving. What we saw
just a few days ago was delays in getting gas to underground
storage, but the reports that I had the middle of this week was
that that is improving, and that is why I said in my oral
presentation that those delays are basically going away pretty
quickly.
So I just haven't seen any in the past day or two.
Ms. McMorris. OK. Then a quick question of Mr. Holloway.
Would you talk about what you may feel the increase in natural
gas prices may mean to the Franklin paper mill?
Mr. Holloway. Yes. It has a big impact on the Franklin
mill, because as you know, if natural gas increased, it will
cause us to have to have our company to pay out more income for
purchasing gas and energy. Therefore, it will take away the
profit that it will have and for employment with the people
that were employed here.
So, therefore, I feel that natural gas is a big--would have
a big impact, and also if it gets so tremendous, our companies
close. That would be a terrible impact for the City of Franklin
and the entire Tidewater area and North Carolina. So I do feel
that it would be a big block impact on what could happen with
us and our company.
Ms. McMorris. OK. Very good. Ms. Drake?
Ms. Drake. Thank you, Ms. Chairwoman. Mr. Kelman, you
suggest in your testimony that there is nothing in NEPA that
requires these hug encyclopedia type documents for NEPA. We
just heard from Mr. Shafer about one copy filling a trunk.
Through the hearings across the nation, we have heard from
many agencies. I mean, they will hold their hands up to take
pictures beside the documents. So if you don't think there is
anything that requires it, why do they spend so much time
preparing these documents?
Mr. Kelman. Well, you have to look at the project. I mean,
some projects are simple. When I fill out my income tax, it
might be two pages, because I have a simple situation. When
General Motors fills out theirs, it could take several vans
worth of tax information. It is the same thing about
environmental assessments.
When you are doing an environmental impact statement or
environmental assessment, it depends on how complicated the
project is. If it is a simple project, you are going to have a
simple statement. If it is a complex project, then I think we
owe it to the public to bring out all the environmental issues
involved.
Ms. Drake. Do you think--You mentioned also about judicial
review. Do you think one of the reasons that there is so much
documentation and so much is required is simply to defend a
project within court, because people could very easily end up
in court through this process, and not because of an underlying
law, as we heard Chairman McMorris talk about, and I think Mr.
Stiles referred to that as well, that--He mentioned--I wondered
exactly what you were referring to, but if people are suing
under NEPA rather than under Clean Water, Clean Air, Endangered
Species, if that's what all those documents are all about.
Mr. Kelman. They might be the feeling of the attorneys for
those places that there are needs. They have to put all their
ducks in a row in anticipation of judicial review, but I'm not
an attorney. So I really can't----
Ms. Drake. Because this particular paragraph says that it
should normally be less than 300 pages, and that is really not
what we've seen, both from Mr. Shafer or from other people. But
let me finish with Mr. Stiles, because I took a note when you
said that, that you said--I interpreted what you said to be
people are suing under NEPA rather than under an underlying
Act.
I think it is important to clarify that NEPA, as Ms.
McMorris said, was passed first, and there have been many
environmental laws since. So I would wonder why--maybe I
misunderstood you--why you would sue under NEPA rather than
under the Act that you feel has been violated. That is the way
I interpreted it.
Mr. Stiles. It's sort of like the analogy that I gave about
a boxing match being fought under the Marquis of Queensberry
Rules. NEPA provides the rules and standards as implemented
through agency regulations, and the disputes frequently are an
interpretation, say, of the Clean Water Act and its
definitions. But the way you get there is by using the
Queensberry Rules, by using the NEPA rules, but the actual
problem is in some cases an inconsistency in the original Act
or a changed definition--a changed interpretation of the
definition in the original Act itself.
So you sue under NEPA to get to the original Act, but the
actual problem is in the original Act, in some cases.
Ms. Drake. And why wouldn't you just sue under the original
Act?
Mr. Stiles. NEPA sets the standards. Again, the decisions
are made within the agencies under the standards as implemented
through the agencies and their regulations. So when someone--
When the Corps of Engineers is making a decision under Section
404 of the Clean Water Act, for example, those determinations
are set by these Queensberry Rules, by NEPA.
So the problem is in the statute, but the problem--The way
you get at it is through the rules--through the standards in
NEPA.
Ms. Drake. My understanding of NEPA, if that's all right,
is that it provides for input and interaction within government
agencies, Federal agencies. It allows for public input, and it
requires that there be alternatives. But you are saying it is
also being used--Is it easier--So it is obviously easier to sue
under NEPA than under what you feel has been violated.
Mr. Stiles. Well, you challenge the Clean War Act, for
example, because of a standard that NEPA has set--well, a
standard that the Corps of Engineers has set in their becoming
compliant with NEPA. In other words, NEPA itself is, as you
know, one of these sort of elegant, three-paragraph statutes
that really doesn't give you a whole lot of detail.
Ms. Drake. It is a process.
Mr. Stiles. Yes. The way it is implemented is each of the
agencies is required in their activities to meet the standards
that NEPA has set forth. In fact, the Council on Environmental
Quality has set standards that each of the agencies then has to
implement. So it's sort of down to the agency when they are
making the determination on Section 404 of the Clean Water Act.
They are doing it in accordance with these Queensberry Rules,
with the NEPA standards that have been set.
So you are suing--You are using NEPA to challenge the Clean
Water Act is what you are doing. But the problem itself is in
the way that the definitions in the Clean Water Act have been
implemented.
Ms. Drake. Thank you for that explanation. I just have one
last question for him. That is: Your Wetlands Watch website
states, ``The regulatory system is set up to be adversarial.
While this may seem unfortunate, it's the way that it is.''
Since we have just had this discussion about NEPA being a
process, don't you think that that in itself would ask for
reform, that it should not be an adversarial process within
NEPA?
Mr. Stiles. Well, I think that any regulatory process,
because it involves the balancing of a current economic need
with some future environmental impact, is always going to be a
conflict; because what you are doing, in effect, is you are
taking future costs that are somewhat unknowable and frequently
have been disregarded, but you are taking those future
environmental costs, and you are bringing them into the current
regulatory decision.
For example, some estimates by the Department of Interior
say that the hurricane prevention potential of an acre of
wetland is 1600 bucks. Well, what the regulatory process does
is it goes out and it does those kinds of analyses, and it
says, OK, you want to disturb a wetland. Ordinarily, there is
no value associated with it, but wait, now we know that there
is a potential hurricane potential. We know that it is a
recruitment ground for a number of fisheries.
You know, you begin to put value on the wetlands, and what
the regulatory process does is it says to the person, even the
Federal agency or the individual who is seeking the permit--It
says, well, you are going to make some economic gain off of
this, but we as a society are going to lose these future
economic benefits. So we have to balance them out.
So the conflict comes, because I'm an applicant, I am
going--I want to put a pipeline in. You are telling me I got to
worry about these other economic benefits or these
environmental benefits.
That's where the conflict comes, because that's what NEPA
does. It basically balances the--It's a cost/benefit entry in
many cases, and it balances current gain against future losses,
especially where there are irreparable damages to the
environment, and it is necessarily a conflict, because if I am
a profit making operation, I want to put my project in, and yet
you have to take all the societal costs into account in issuing
a permit. That's the way the law was written.
Ms. Drake. I will yield back.
Ms. McMorris. OK. Thank you. I wanted to go to Mr. Besa
next.
We have heard concerns dealing with NEPA. You made the
statement that NEPA doesn't stop projects. We have talked to
folks from transportation departments across the country,
public works. And although you didn't mention it in your
remarks, the Sierra Club is often concerned about urban sprawl
and urban growth issues.
It is not unusual for transportation projects from planning
to actual time when the road is built for it to be years and
years, and in that period there's been many examples where the
Federal Highway Administration's NEPA analysis will be upheld
ultimately, but yet during all of the litigation that takes
place, roads are not built, projects do not move forward.
So isn't that in essence stopping the project?
Mr. Besa. Well, I don't think you would consider it
stopping the project when basically this process is set up to
evaluate, as Mr. Stiles said, the various competing interests.
That's really what is involved here, and it does take some
time. Democracy takes time.
You know, when you've got a complicated--It may seem simple
out building a road, but when you figure that a road, for one
thing, may destroy wetlands that have value in terms of flood
impacts, when you consider that a road has secondary impacts in
terms of stimulating development that may make a demand on
local governments in terms of schools and police protection and
a variety of other things, there really gets to a real
balancing act involved.
It's not just simply building a road. It is considering all
the impacts the road has on the environment, on the economy, on
the communities.
I think all we need to do is look back to before NEPA
during the time where we started building the Federal highway
system, and recognize the devastation it caused to our cities.
I think everyone who knows the way that we walled off certain
communities that we wanted to separate, the way we destroyed
other communities completely.
There's got to be a recognition that we really need to
study the problems, because if you look at what happened in the
way of road construction before NEPA, we've got lots of
examples of it in a lot of our urban cities where roads
destroyed communities which have still never recovered.
Ms. McMorris. I am not for a moment suggesting that we go
back to before NEPA. I am only asking if there is a better way
that we can, as we move forward, look at the environmental
impacts.
Just continuing with this example, what about those
examples when there may be numerous cases and action taken
against a particular project, and there's the examples when you
might lose time after time after time, and in that meantime we
have traffic congestion, we have air pollution, and what about
that impact on the environment?
Mr. Besa. Well, you are asking a very complicated question
here, and I think it goes well beyond the bounds of NEPA. I
mean, we've got a situation in this country where suburban
sprawl, as you mentioned, and it has been a concern of the
Sierra Club, is a real problem for folks.
I would suspect that, if you talk with your constituents,
they are oftentimes very concerned about development that is
occurring somewhere where it hadn't before, and I don't know
that NEPA really plays into that problem.
What you are suggesting is that the delay in building a
road may exacerbate pollution problems or congestion. I would
suggest to you that what is being debated, really, is a public
policy question--maybe again NEPA is what's involved here--
relative to whether a road gets built or whether we consider
mass transit.
Whether a road is actually in effect future land use
policies because, as we say, if you build it, they will come,
and in many instances a lot of road projects--no disrespect to
the Congress--are looked upon as pork barrel projects that open
up a lot of vacant land, a lot of farm land to development that
doesn't serve the environment and doesn't serve those local
economies very well.
Ms. McMorris. Thank you. Mr. Spainhour, I wanted to talk a
little bit more about the aggregate industry, and if you could
just give me a sense as to the type of regulations that you
deal with and where you feel NEPA may be duplicating efforts.
Mr. Spainhour. OK. Most of our operations--and I will speak
for Vulcan Materials Company. Most of our operations are
heavily regulated at the state and local level. Most of the
permits that we have to operate, that we have to have before we
can construct our plants, before we can operate them, are
usually state permits, depending on the state.
California is the best example. California has a series of
overlapping regulations at the regional level, State level and
local level. The involvement with NEPA is really when we get
into an action that's going to involve a Federal agency
decision.
One of the common examples would be if you have Federal
lands that you are actually wanting to go onto and mine and
recover the aggregates from. One of the anomalies of our
industry--You know, aggregates are not available everywhere.
You have to go to where the rock is. You have to go to where
the sand and gravel is.
The Gulf Coast is a good example of that. Vulcan has a
number of operations in Mississippi, Louisiana, and Alabama,
coastline operations that are essentially yards. We don't
produce the rock there, but we ship it in from other locations
and distribute it to the local marketplace to help in the
construction activities; because the aggregate resources are--
at least for our company, are limited in that area.
So you want to be able to develop the resources where the
resources are located. Now when the resources happen to
coincide with Forest Service land or other Federal lands, that
is going to activate the NEPA process. If they happen to be in
areas where you have other concerns like endangered species or
wetlands, that is going to usually activate a Corps of
Engineers or EPA or Fish and Wildlife Service decisionmaking
process that could trigger NEPA.
You know, Vulcan is very proud of our environmental
efforts. So we want to protect endangered species. We want to
protect wetlands. We want to do things the right way. So we
want that process to work effectively to protect the
environment, but where it really impacts us is where you have
different directions and different positions and policies and
ways that the actual requirements within the different agencies
are implemented and enforced; and it creates uncertainty when a
company like Vulcan goes into an area and we know we are going
to activate Corps of Engineers permitting or we know we are
going to be on Federal lands, understanding exactly how that
area, that agency, is going to--what they are going to require,
what we are going to have to put together as far as supporting
information to support environment assessment or environmental
impact statement.
To a company like Vulcan, we want to have some assurance
that we understand that process, we are going to be able to
work within that process to accomplish a common goal of
protecting the environment, as well as developing the necessary
resource. That is where a lot of the problems come in.
There are differences in approaches within different
agencies, different areas, and you run the risk of sometimes
having specific agendas within given agencies that can affect
your process also. We have had some processes where we have
been involved in that go multiple years, that we have to go
through multiple alternatives' analysis.
We tried to design our projects in a way--The West Coast is
the best example. We like to design our projects in a way that
minimize the impacts to the environment and are designed in a
way that we can effectively work through the process. But when
there's uncertainty out there, sometimes we are not able to do
that.
Ms. McMorris. OK. Thank you. Ms. Drake?
Ms. Drake. Just to wrap up--Thank you, Chairwoman--Mr.
Besa, I think where Chairwoman McMorris was going when she
asked you about the impact of not doing a project--Maybe since
NEPA, part of NEPA, is alternatives. You know, what are other
sites? Maybe one of the things we should look at is that: What
is the impact of doing nothing?
I can tell you, the biggest concern in Virginia right now
that for all of us here across the State is transportation, and
I think it is a frightening thing to think we wouldn't have the
highways we have today if they weren't built a long time ago.
Not that that means we want to do them in any way other than
the most environmentally friendly, but I can't imagine Virginia
without the roads that we currently have today. But don't you
think that could be a suggestion that comes out of this
commission, is to look at what happens if you do nothing?
Mr. Besa. Well, actually, there is a ``No Go'' alternative.
So there is a review of what happens in the event of doing
nothing. It's called the ``No Go'' alternative.
I think that we have to consider transportation and energy
policy together here, because, obviously, the serious problems
we are having here now associated with energy demand relates
directly to our transportation policy in part, and recognizing
our increased dependence on oil and foreign oil is a result of
a transportation policy that spreads this out further and
further and further.
Now I think that, if we are going to get serious about
energy and serious about transportation, then we need to
basically start to be better planners, because when we just
decide that we can run a road here or run a road there and not
really worry about the consequences in terms of not only
transportation but in terms of energy demand, particularly
today when we see--These gentlemen who are involved in energy
know about the concept of peak oil.
Really, they aren't making any new oil, and in 10 years or
15 years, I suspect that we are going to be on the downward
side, and that means that, obviously, we are going to have to
really look at the way we move ourselves around. So,
consequently, I--I may not have answered your question
directly, but I did my best.
Ms. Drake. Well, would it surprise you that the Canadian
government believes that North America can meet her energy
needs in North America, the North American continent, with
Mexico, Canada and the U.S. working together with resources
that we currently have?
What you just said--You kept talking about relying on
foreign oil, but the information we have is there are a lot of
resources within this continent.
Mr. Besa. Well, there certainly are, and those all involve
significantly increased costs in terms of money. So you are
going to raise the price if you are starting to go into coal
bed methane, for example, or other forms of production. So it
is going to raise the price, because those are hard to get at.
Then you've also got the environmental impacts of these,
because in many instances it's very little oil spread over a
large area, and it involve extraction of tremendous tons of
minerals or whatever to get at the oil. Then, of course, we
haven't discussed the issue of global warming which, in light
of the debate that seems to be clearly indicating that is a
problem, that we need to think and, I'm sure, rethink our use
of fossil fuels.
Ms. Drake. I just have one last comment, and that is in
other hearings we have heard from people, one woman in
particular, how the company that she is with has been trying
for 20 years to open a mine in Arizona. At the same time, her
company went to Chile, opened a mine in three years.
So when we start talking about offshoring of jobs--and I
see Mr. Holloway shaking his head, because as a union
representative, he understands that's probably the biggest
reason we lose jobs rather than cheap labor, like people like
to say. But I would like to know from Mr. Shafer or Mr.
Spainhour, could you give us an average amount of time it takes
you to get through the process, just to know that average
amount of time? And that woman who was at 20 years had not even
been to court yet in any cases, but she was up and running in
Chile in three years, and that predictability, I think, is huge
for our business community. Mr. Shafer, and then I'm done. I'm
sorry.
Mr. Shafer. I had spoken a little earlier about the
planning process. My experience gives me these numbers I am
going to give you, which would be an average, which would be
what I would consider a major project, major large diameter,
high pressure, natural gas transmission pipeline, not projects
like the Alaska gas which we need desperately from the North
Slope and that kind of thing. But a year and a half to two
years in the planning process, and then about 18 months to work
through that process, if you use the pre-NEPA filing,
collaborative approach, kind of the quasi-team permitting
approach.
Then if you have no legal actions to work through, it would
take you at least a couple of years to build it. So you are
talking about five, six years.
Ms. Drake. OK. Mr. Spainhour?
Mr. Spainhour. On the aggregate facility side, it varies
tremendously based on what part of the country you are in.
California is probably our worst case scenario as far as
timing. In California the planning process really has to start
several years before you plan on beginning operation.
Part of that, as I mentioned, is the definition of the
project, the design of the project. A lot of work goes into not
just determining where your resource is, but also laying out
how your facility will be designed, how it will be operated
throughout its life cycle, and understanding how the property
will be used at the end. So you convert it into a usable
resource, whether that is commercial development sites or
recreational development, whatever it may be.
So that process takes you a while to work through. Then
when you get involved with the regulatory agencies in siting,
it is a multi-year process. Now our folks have told me when you
add NEPA on top of that, you are adding probably another year
to 18 months to two years on top of the existing process out
there.
The biggest burden that we have as far as timing outside of
California will be based on local issues, really, based on the
supportive of the community and the amount of concern the
community expresses about the location of the mine site.
You know, we try to work in a way that we are viewed as
good citizens of the community, but folks aren't always happy
to have the mine site or sand and gravel operation next-door.
So we have to work through those issues and make our way
through that.
Ms. Drake. Thank you very much. I yield back.
Ms. McMorris. OK. You know, one of what I perceive to be
the challenges of NEPA is that, when you look at the law,
nearly every word of NEPA has been litigated. You know, what is
the definition of significant? What is the definition of
impact? You know, just on and on.
Instead of clarifying through the years, it has only making
it more--In my opinion, it is more tangled, because every year
there's hundreds and hundreds of cases pending across this
country that are further clarifying and defining and making it
more and more cumbersome.
The question is, Mr. Spainhour, if you would just answer
the question as to what types of criteria are used to define
major Federal action?
Mr. Spainhour. Well, my understanding, it really depends on
the agency you are dealing with. You know, I can--Probably the
best examples I can give are projects that we have been
involved in. In cases where we have planned on developing a
mine site or extracting reserves from Federal property like
Forest Service property, for example, that is usually going to
be viewed as a Federal action.
Activities with dredge and fill permitting, those type of
activities--that's usually going to be viewed as Federal
action. We are involved with a project right now where we are
developing a rail line, and it is under Surface Transportation
Board. So we are going through the environmental impact process
right now assessing that.
That's the best--I can only really give you examples I have
experience with. So those are the kind of examples we deal
with.
Ms. McMorris. OK. Very good. At this time, I think we have
completed the questions, unless you have any other questions.
I again just want to thank each of you for being here. We
value your input, and we may have some further questions for
you. We would submit those to you in writing and ask you to
respond also in writing.
I understand that everyone has busy schedules. We do have
the website up and going, and continue to ask folks to submit
their comments to us. This has been a process of listening to a
whole host of people all across this country as to how they
interact with NEPA, and today we have heard from people
representing three different states, and it is all helpful.
I would also like just again to thank my colleague, Thelma
Drake, for inviting us to be here today. It has been great to
be here, and if you have anything else you would like to say, I
will give you that opportunity.
Ms. Drake. Well, Congresswoman McMorris, I would like to
thank you for coming. She did drive down from Washington. So
she got to see how beautiful our area is as you enter through
the Hampton Roads Bridge-Tunnel. So she will go back to
Washington and talk about what a beautiful area that we have.
I would like to thank Dr. Runte and Old Dominion again for
allowing us to be here. I would like to thank all of you for
taking your time and for working with us as we continue to work
through this process.
I don't think there is anyone in the room that doesn't
support the intent of NEPA No one would want to limit public
input. We all believe that more interaction with agencies is
better and that Federal agencies should be able to weigh in on
projects, and we do think we should look at alternatives to
projects.
So we truly support NEPA. We just feel, after 35 years,
that we should be looking at what is reality. We are hearing
from people, there's way too much documentation. We are hearing
from other people there really isn't any. So we are sort of
back and forth, and we are really trying to find that balance
of how do we protect our environment and meet our needs as a
great nation as well. So thank you for your part in that.
Ms. McMorris. Thank you. With that, the meeting is
adjourned.
[Whereupon, at 2:54 p.m., the Task Force adjourned.]
[NOTE: Information submitted for the record has been
retained in the Committee's official files.]