The National Environmental Policy Act - known as the Magna Carta of US environmental laws - is under intense political scrutiny.
For 35 years, NEPA has required that everything built or operated on federal land that "significantly affects the quality of the human environment" be scrutinized for its impact. Thousands of construction projects and other ventures - from highways, dams, and water projects to military bases and oil drilling - have been adjusted and in some cases scrapped because of the law.
The requirements of this Nixon-era act have done much for environmental protection, its supporters say. NEPA also has acted as a "sunshine law," opening the political process involving such decisions to all Americans through "environmental impact statements" allowing for public comment.
But the law has also been the basis for hundreds of lawsuits, in effect becoming a tool for activists to slow or kill many projects. NEPA also has greatly added to the cost of public works, energy development, and other beneficial projects, critics say. Most recently, it has been charged, environmental lawsuits under NEPA stymied US Army Corps of Engineers plans that might have lessened the impact of hurricane Katrina along the Gulf Coast.
A congressional task has just ended a series of public hearings in five states and Washington, D.C. Lawmakers heard from a range of interests - the New Mexico Cattle Growers' Association, the Women's Mining Coalition, the Zuni Tribe, the Sierra Club, energy lobbyists, and local officials. A report and recommendations from the task force are expected shortly. It's unclear whether these will produce major changes to NEPA, as some environmental activists fear, or merely tweaks in the law.
In either case, the working premise of the 20-member task force has been made clear by its chairwoman: "What started as an overly vague single-paragraph statute is now 25 pages of regulations, 1,500 court cases, and hundreds of pending lawsuits that are blocking important projects and economic growth," said Rep. Cathy McMorris (R) of Washington. "Too often we are hearing horror stories about endless reams of paper needed to complete the environmental impact statements."
The law's supporters see it as a "look-before-you-leap" measure that has brought about a new way of considering long-range environmental impacts of things like river dredging, new power plants, and waste disposal. In the case of New Orleans, environmentalists point out, the US Army Corps of Engineers responded to a NEPA challenge (upheld by a federal judge in 1977) by withdrawing its plan for new levees. "Flooding would have been worse if the original proposed design had been built," a Government Accountability Office official recently told a House Appropriations subcommittee.
Though supporters of the existing NEPA may be outnumbered in Congress, they have their champions. "Where critics see delay, I see deliberation," Rep. Tom Udall (D) of New Mexico said at the last task force hearing Nov. 17. "Where they see postponed profits, I see public input. Where they see frivolous litigation, I see citizens requiring their government to live up to its responsibilities."
The law, which covers natural resources on public land, has particular impact on traditional Western industries - ranching, logging, mining - especially since the federal government controls much of the land in Western states.
"I do not believe that NEPA was ever intended to halt natural-resource use, sometimes to the detriment of natural resources, or to deprive families and rural economies of livelihoods," Caren Cowan, executive director of the New Mexico Cattle Growers' Association, told lawmakers.
One thing NEPA critics want is "categorical exclusions" for certain activities that can impact the landscape - fencing and water facilities on Western rangeland, for example. "These activities have a minimal impact on the land but can play a critical role in putting in place a well- managed grazing program resulting in important benefits for the resources," Idaho rancher Brenda Richards testified earlier this month.
The Bush administration has already issued exclusions from full NEPA review on grounds that some activities - such as salvage logging where wildfires have burned timber on federal land - do not have major environmental effects.
Such exclusions, said Michael Anderson of the Wilderness Society, "greatly diminished public participation and environmental consideration in federal land management."
In a recent letter to Representative McMorris, 10 former White House officials who chaired or were general counsel of the President's Council on Environmental Quality (CEQ) in five administrations (three Republican and two Democratic) expressed the same concern.
James Connaughton, current CEQ chairman, attributed any problems to the law's implementation. To resolve conflicts and head off lawsuits, he said at the last task force meeting, his office is working with the Institute for Environmental Conflict Resolution, "bringing parties together to seek common ground and accept compromise."