Fixing NEPA

For the past month, the Forest Service has been soliciting public suggestions for increasing the operational efficiency of the National Environmental Policy Act. The comment period closed last Friday. It will be interesting to see what efficiencies the agency identifies that don’t prompt litigation from the usual suspects.

The only way to “fix” NEPA is to start over. The well-intended Act, ratified in 1969, has become the embodiment of the Law of Unintended Consequences. No federal law has had a more detrimental impact the environment. Witness the fact that 80 to 90 million acres of federal forestland in the western United States are at death’s door with no plausible or scalable rescue plan in sight.

Fire ecologists we know tell us we have 25 years – 30 at the outside – in which to rescue as much federal forestland as possible from a fiery abyss. It won’t happen unless NEPA gets fixed.

In 2,137 well-chosen words, the 1996 Act laid out a sensible strategy for evaluating and measuring the environmental impacts associated with developments on federal lands: National Forest timber sales, road and bridge construction projects, campgrounds, ski resorts, golf courses and other developments that might impair natural, historic or cultural assets.

In breezy prose, federal lawmakers laid out NEPA’s purpose:

“To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.”

There is nothing productive, enjoyable, harmonious, preventive, healthy, stimulating or enriching about NEPA today. It has morphed from its original 2,137 words into thousands of pages of rules and regulations and tens of thousands of impossible-to-quantify words that have become a vast and lucrative feeding ground for environmental lawyers representing serial litigators who are hell-bent to stopping every attempt the Forest Service makes to restore natural resiliency in collapsing National Forests.

NEPA has become so complex and ambiguous that it can take up to three years to complete an Environmental Assessment. More detailed Environmental Impact Statements take even longer. The taxpayer-paid cost of EA’s and EIS’s often tops $1 million apiece.

In its January 3, 2018 press release, the Forest Service spoke candidly about the urgency of its NEPA review. “The Forest Service’s capacity to complete environmental analysis needed to make decisions is at its lowest level in decades, largely due to the increased costs of dealing with longer, more intensive wildfire seasons. In addition, more than 80 million acres of land the Forest Service manages is in urgent need of treatment to mitigate risk for fire, insect and disease infestation.” [Italics mine]

Forest Service Chief, Tony Tooke, is quoted in the January 3 press release, so we assume that it is he who is trying to call congressional attention to the “substantial backlog of forest, watershed and range restoration projects.”

The backlog of which Mr. Tooke speaks includes 6,000 still unprocessed special use permits impacting more than 7,000 businesses and 120,000 jobs. We will guess that most of these jobs are in outdoor recreation, with some spillover into actual forest restoration work. Such is the crippling and deplorable NEPA legacy.

If you want to know how NEPA reviews should work, Google the Environmental Assessment the Forest Service produced following Hurricane Katrina. The August 29, 2005 hurricane inflicted heavy damage on 578,000 acres of mixed pine and hardwood forests on Mississippi’s Desoto National Forest. The EA, which, among other things, accounted for impacts on endangered, threatened and sensitive plant and animal species, is only 18 pages long and took less than two months to complete.

How can this be? Easy. The Forest Service relied on emergency authorities contained in the 2003 Healthy Forests Restoration Act. Why the agency can’t replicate its Desoto National Forest experience in fiery western national forests is beyond me, but until Congress finds the will to fix NEPA, nothing will change until there is nothing left to burn.