This article was updated at 7:59 a.m. March 24.
The National Environmental Policy Act remains vital but federal agencies must take a fresh look at its application, the chairwoman of the White House Council on Environmental Quality said today.
"So here we are, NEPA at 40," CEQ's Nancy Sutley said at a conference co-hosted by the Environmental Law Institute and George Washington University Law School in Washington. "Is it having a midlife crisis? I don't think so. Perhaps like me, when I turned 40, it just needs some reading glasses."
Noting that politicians often say NEPA must be changed because it slows down projects and invites litigation, Sutley said agencies can find the flexibility to carry out NEPA reviews in a way that maintains the law's principles and goals without "undoing the whole thing."
"A scalpel is probably better than a bulldozer to deal with NEPA," she said.
Officials have begun viewing NEPA as just another box that must be checked before projects can proceed, she said, but it's time to take a more strategic view of how it can affect a new and daunting set of environmental challenges.
That can be done without having to go back to Congress, she said. NEPA, as written, provides flexibility so CEQ can continue helping agencies figure out how to make decisions quickly and well.
"NEPA does give us the opportunity to think about tradeoffs and think about alternatives, and that's important and that has been very useful for us," she said.
But she added that questions about NEPA reviews are "pushed down so far in federal agencies that it takes forever for them to rise up" to decision makers, she said. Agency chiefs must ask question early on about where NEPA fits in, which hasn't been happening in the past several years, she said.
The law can lower the risk of litigation when it's done right, she said. That means the process must be collaborative, address the hard issues up front and happen early in the decision flow.
Despite much talk on Capitol Hill that NEPA leads to litigation, of the thousands of decisions that federal agencies make every year subject to NEPA, there are about 120 lawsuits filed a year, and the government wins the majority of those, she said.
At issue: climate change
A petition is currently pending before CEQ calling for it to amend its regulations to address climate change, requiring it be one of the required elements considered in an environmental impact statement. The petition was filed by the Sierra Club, Natural Resources Defense Council and the International Center for Technology Assessment.
Sutley said CEQ will spend time this year looking at how it guides agencies and how climate change fits into overall policy and legislation. "I won't tell you what the answer is because we don't know yet," she said.
Asked if she would support more funding to help strapped federal agencies implement NEPA, Sutley said agencies are going to be facing lean budgets for the next few years.
But she said the Obama administration brings the opportunity to get agencies to focus on NEPA as a tool that's useful for them and to move the discussion to the policy level.
"If it becomes important to decision makers and policy makers, that's how the resources will get devoted to it," she said.
As for how CEQ relates to the new position of White House Energy and Climate Czar Carol Browner, Sutley said Obama saw that energy and climate change are so interconnected they cannot be teased apart. She noted that CEQ retains its statutory authority and will continue to advise the president on all environmental issues and be part of the team trying to work through these very challenging questions.
"For CEQ and really for the rest of the government, there is certainly more than enough work to go around when it comes to trying to figure out how to deal with the challenges of our new economy and climate change," she said.
Both the economic stimulus package and Obama's promise to have an open and collaborative government reaffirm NEPA's importance, Sutley said.
For example, Sutley said she met recently with the Good Neighbor Environmental Board, which EPA oversees and which addresses issues along the U.S.-Mexico border. Two Texas border-town officials complained they had been completely cut out of decision-making about the border fence, she said. NEPA's strength is to focus and inform decision makers and the public about the alternatives and environmental costs of such projects, she said.
Sutley said the language of the law, which was signed by President Nixon on New Year's Day 1970, is "very much of its time," and readers today could either find it charming or cringe-inducing. But it was revolutionary, she said, coming at a time of few meaningful federal environmental laws.
She cited the pre-NEPA building of the cross-Bronx expressway through a neighborhood and said she grew up in Queens where the Clearview expressway was build in front of her house. NEPA marked a dramatic turning point for thinking about how such projects and actions affect the environment, she said.
"It began a new chapter in our country's interaction with the human environment," she said.
Since then, a "whole laundry list" of other environmental statues were passed, such as the Clean Air and Clean Water laws and the establishment of Superfund, she noted. But NEPA uniquely provided openness in decision-making, calling for collaboration and a holistic approach, and provided an overarching statement about the need to address the environment, she said.
"The beauty of NEPA is its breadth," she said.