If the economy flounders despite the massive stimulus package, don't blame the federal law that forces government agencies to review their projects' environmental impacts.
So say National Environmental Policy Act experts like Nicholas Yost, who led the drafting of NEPA regulations during the Carter administration.
The preparation of environmental impact statements under NEPA takes almost three-and-a-half years -- much longer than Yost and others say is needed. The process, they say, can be sped up with strict deadlines, strong leadership from agency chiefs and increased resources and personnel to do reviews.
The law should be expedited, not waived for stimulus projects, Yost said. Regulators should not nix requirements for public input, scoping of project alternatives or judicial review, he added. But there are administrative avenues to spur projects, and the White House Council on Environmental Quality should be "hammering" agencies to make sure that happens, he said.
For example, Yost said, CEQ should be imposing and enforcing time limits for preparing environmental impact statements. CEQ also could use its emergency authority to adopt alternative methods for some NEPA reviews. Most of all, top-down direction is needed from CEQ and agency leaders to make the projects happen fast, he said.
Because CEQ lacks adequate staffing to oversee the work, employees from other agencies should be detailed to the White House, Yost said at a conference co-hosted by the Environmental Law Institute and George Washington University Law School.
To speed judicial review of projects, the statute of limitations could be shortened to 180 days, he suggested. California's limit is 30 days, which works well there, he said. Other possibilities include bypassing district court and moving straight to appeals court, or like the Dutch, using an independent panel of experts instead of courts.
Horst Greczmiel, CEQ's associate director for NEPA oversight, said many agency leaders will come to grips with NEPA for the first time when they see a report going to Congress saying their stimulus projects are not ready to proceed.
Until senior leadership gets behind the idea of having a robust NEPA process, there will not be enough public involvement and support to speed projects, Greczmiel added. Some agencies still resist doing timely environmental assessments, he said, but with the stimulus package, there will be no choice but to focus and finish them.
Dialogue needs to start at all levels of government to plan for projects, Greczmiel added. He has met with representatives from three agencies, working through new procedures that would meet stimulus requirements.
There are not enough projects already through the permitting process to use all the stimulus money, Greczmiel noted. But there are tools available to speed the process without cutting corners, he said.
Many projects have already legitimately qualified for categorical exclusions from environmental reviews, and that should be extended to repairs and replacement in kind, Greczmiel said. "Those types of things ought to be categorically excluded," he said.
And setting schedules for projects will be very important, Greczmiel said, expressing amazement at how often there are not timelines for environmental impact statements. The large number of environmental analyses coming in the next months also will require more resources, he said.
Some see 'hostility' to NEPA
Bob Dreher of Defenders of Wildlife said talk of granting NEPA waivers is "thinly concealed hostility" to the law's purpose. A severe recession does not remove the responsibility for project design and good planning, especially given the major amounts of money involved, he added.
But steps can be taken to ensure a smooth process, he said. If several agencies are involved, one should be designated to take the lead and carry out a coordinated review. And he said the type of process allowed for the Federal Highway Administration under the 2005 transportation funding law known as SAFETEA-LU could be a good model for other agencies that are dealing with stimulus projects.
Even $50 million spent on NEPA compliance across the government, a small fraction of the stimulus money, would make a big difference, Dreher said. "We don't have the people in the federal agencies to do this," he said.
Stephen Kass, a partner and co-director of the environmental practice group at Carter Ledyard & Milburn LLP, explained how the ongoing World Trade Center project used NEPA to move from initial scoping to a record of decision in one year. With serious top-down direction, a strong public sense of urgency and enough resources, projects can be done without waiving NEPA, he said.
Because the money was flowing through the Department of Housing and Urban Development in the form of development block grants, Kass said, a state agency was able to step in and take the lead for the environmental impact statement. He suggested that state agencies might be able to fill the same role for stimulus projects.
Kass said work began on the impact statement even as the scoping documents were still being reviewed. And thousands of public comments were reviewed, classified and responded to within four weeks, which took a lot of extra work by the staff. Despite the fast pace, no lawsuits were filed under NEPA against the project.
Michael Gerrard, a Columbia Law School professor, suggested that petitioners applying for projects be allowed to write environmental impact statements themselves. Currently, they are mainly written by consulting firms hired by federal agencies, he said, divorcing the environmental analysis from the design or planning process.
While he acknowledged that the change might lead to a less objective EIS, Gerrard said it would insert the environmental reviews into the planning process, leading to early identification of adverse impacts so the project can be redesigned to prevent that. That is more important than ending up with a "gleaming document that's never read," he said.
"I'm not saying the foxes should be given control of the henhouse," Gerrard said. But he added that he favors good decisions and projects over good documents.