Sandra Nichols
Staff Attorney
WildLaw  

Testimony
Before the Committee on Resources
United States House of Representatives
NEPA Task Force

Field Hearing on
the Role of NEPA in the States of Texas, Louisiana, Mississippi and Alabama.

July 23, 2005

The National Environmental Policy Act 1 (NEPA) is perhaps the shortest federal environmental statute. Yet its benefits are incalculable. In countless cases, NEPA procedure has enabled the discovery of potential problems early enough to resolve them before they became obstacles to the completion of federal projects. This small act’s purpose is to require federal agencies to consider the environmental consequences of major federal actions; it is aimed at the federal government and not at individuals or the states. NEPA directs that all federal agencies must include in all “major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on ... the environmental impact of the proposed project ....”2 This requirement is the genesis of what is commonly known as the environmental impact statement (EIS), and the cases that deal with whether a federal agency must prepare an EIS on a particular project are legion.

Congress created NEPA to provide procedural steps for agencies to take prior to initiating projects to assure that the decision maker and the public would be aware of the environmental consequences of the project. When making project decisions, among the factors federal agencies must consider, NEPA requires a look the environment and public concerns. The Supreme Court has held that NEPA is strictly procedural in nature, which means that NEPA requires only that an agency evaluate the environmental consequences of any action. NEPA require agencies to consider the environmental impacts of their decisions, but it does not mandate projects or methods. NEPA requires an agency to take a hard look at environmental impacts, but that agency can still take any course of action. There is no requirement in NEPA that the agency bias its decision in favor of protection of public health and the environment.3

NEPA and the regulations adopted there under by the Council on Environmental Quality (CEQ) are binding on all federal agencies. For every federal project an environmental assessment (EA) must be performed. The main purpose of the EA is to determine whether an EIS needs to be done. If, as a result of the EA, the agency finds that there is no “significant” environmental impact, then the agency issues a Finding Of No Significant Impact (FONSI) and continues with the project. The definition of “significant” has been heavily litigated because if an agency issues a FONSI as the result of its EA, and there are unresolved conflicts about the impacts of the project, those concerned will argue that the FONSI was incorrect and that an EIS must be prepared prior to continuing.

WildLaw attorneys have reviewed more than 5,000 NEPA documents, including several hundred EISs, thousands of EAs, and thousands of Categorical Exclusions (CEs), Decision Memos (DMs) and other related work. We have seen 12-page EAs that fully complied with NEPA, and we have seen 450-page EISs that did not even come close. Page length and “administrative burdens” have nothing to do with whether an agency complies with NEPA or not. It is the attitude of the agency personnel that matters most.

If agency personnel see NEPA as a burdensome hurdle to be overcome, they will inevitably fail to comply with the law. When they see NEPA as a process to improve information collection and decision-making and as a means to improve public participation, they invariably do excellent work, both in the NEPA analysis and on the ground.

Examples of NEPA Working in the Southeast

Kisatchie National Forest, Louisiana

Some U.S. Forest Service District Rangers use the new Healthy Forests Initiative (HFI) authorities (which deal with NEPA requirements, mostly) to shortcut public participation. When they decide to undertake a project on their national forest they send out generalized scoping notices (sometimes no more than two paragraphs) and do not allow public comment on any draft EAs they do. The only information the public ever gets about any categorically excluded HFI project before it is decided is the scoping notice. Thus, if the scoping notice does not give specific details, the public is taken by surprise, after the decisions are made.

Districts in the Kisatchie National Forest, such as the Kisatchie District, send out 5-10 page scoping notices that include detailed maps and several photos of the project areas, all with brief, but clear and detailed, descriptions of the project areas and planned actions.

After a CE project is decided, it is important that the decision memo (DM) cover the analysis done and properly justify the project and the use of the CE under the HFI. Otherwise, a member of the public concerned about the project will have no way to find out more. Commonly, citizens in this position resort to litigation in order to learn the details of the project. Again, districts in the Kisatchie shine in providing detailed DMs, including analysis of data on management indicator species and other surveys, that give a very clear picture of the staff's work and analysis and of the project's proposed actions and impacts.

A good CE scoping notice and a good CE DM can head off much trouble if they show thoughtful, careful and proper use of the HFI authorities in ways that actually do address forest health problems.

If a project is too big for a CE and requires an EA, the agency should send out the draft EA for a reasonable period for public review and comment. Courts have ruled that the public must have a chance to review and comment on a draft EA (or NEPA material that is substantially equivalent to the EA) from the Forest Service.

All the districts in the Kisatchie provide reasonable comment periods on their draft EAs. For an example of an exemplary EA, get a copy of the draft EA for the Little Kisatchie Project Area project from the Kisatchie District. It is a very fine EA giving the reader an excellent and clear review of the project, its purpose and its impacts.

National Forests in Alabama

In 1992, the National Forests in Alabama were the worst in the whole Forest Service system. Their only goal was logging and this negligence resulted in legal violations. A series of lawsuits, appeals and other legal actions shut down all logging in the National Forests in Alabama in 1999. Since then, the leadership of the Forests and much of the staff has changed. Now, the National Forests in Alabama are implementing scientifically-valid restoration programs, all of which were prepared under (and in full compliance with) NEPA. If NEPA can be followed in Alabama, after such dismal failure, such a reversal can be achieved anywhere. The first to do this new type of restoration work, the Conecuh National Forest prepared a full Environmental Impact Statement (EIS) on what restoration is needed for that forest’s unique Longleaf Pine/Wiregrass ecosystem (the rarest forest type in North America) and on what work could be done in five years to correct past mismanagement and restore the natural and healthy forest native there. That restoration plan was not challenged legally in any way and is proceeding successfully.

The Talladega National Forest just released their five-year restoration EIS in early 2004. It covers 19,000 acres. They had MIS data for the entire area over several years, and they did complete surveys for endangered, threatened, proposed and sensitive species on every acre of that 19,000 acres.

Now National Forests in Louisiana, Florida and parts of Mississippi are also doing great Longleaf Pine restoration work, all in compliance with NEPA. Population trend data on management indicator species is being collected and analyzed. Survey data on threatened, endangered, and sensitive species is being collected and analyzed. Public participation is open and good. NEPA analysis for most of these projects is exemplary and does not slow down the agency at all. Indeed, most of these forests have found that doing NEPA analysis right, instead of trying to shortcut NEPA, makes their final decisions better and more successful.

How can agencies comply with NEPA? Simple, d o these things: Follow the law, use good science, be honest and open with the public.

Which takes longer? (1) Doing a quickie EA in four months, or (2) Doing a full and thorough EIS for two years? Answer: (1).

Consider one timber sale WildLaw challenged in the late 1990s. The EA came out, and it was garbage. We appealed the decision to proceed with the project and we won. The second EA came out much the same, and we appealed and won. The third EA came out, and, yep, we appealed and won again. The fourth EA came out; it was finally better but still lacking. It got stopped by a lawsuit. So, the EA that took four months to do has still not been implemented now eight years after it was started.

Around the same time, the Conecuh National Forest did a full EIS on longleaf pine restoration on the forest; it took them about two years to plan and prepare the EIS. They are now entering year five of that five-year project and are starting the phase two EIS tiered to the first EIS. That Ranger has won numerous awards, got a nice, big Tahoe to drive, and has made the local loggers and politicians happy. Scientists and all environmentalists involved in that forest are pleased. The Ranger who did the crappy EA has disappeared somewhere into the bureaucracy.

Read the Conecuh Longleaf Pine Restoration EIS. It is not a long EIS in page-length as it is a good example of site-specific detail and data without unnecessary filler. When they did it, they got a lot of flack within the agency about how “this is not the way we do things,” but guess what? Once it was done, it was not appealed or sued over (not even by that 5% who oppose logging on principle), and the Conecuh is now winning awards and national recognition for their work. And rightfully so. Now, all the forests in Alabama are doing restoration EISs. The analysis work takes longer than for an EA but the result is MUCH better.

Below are photos showing how the Conecuh National Forest uses clearcuts with reserves to eliminate unnatural Slash Pine plantations to restore them to native Longleaf Pine:

Figure 1: All Longleaf is retained and debris is spread to prevent erosion and rutting.

Figure 2: Longleaf seedlings are planted and prescribed fire maintains the composition of the stand.

Also, you don’t see massive wildfires on Alabama’s National Forests, precisely because they have a well-planned work program to restore the natural forests, including regular prescribed fire. Instead of disingenuously claiming that clearcuts done to get the cut out “mimic natural processes,” they are actually restoring and assisting natural processes. These photos show how using prescribed fire for restoration purposes works in the Conecuh National Forest.

Figure 3: Longleaf forest in need of fire.

Figure 4: Prescribed fire in action.

Figure 5: Restored Longleaf forest after thinning and with regular prescribed fire.

The other National Forests would do well to learn from the Conecuh in Alabama. They should take a year or two to do a full and excellent EIS on what restoration really means for their district or forest. If they consider all forest needs, road repair and road obliteration, stream rehabilitation, indeed entire watershed rehabilitation, etc., and involve all stakeholders at every step they will be in a vastly better position for future projects. It is more effective to do a comprehensive analysis than to analyze individual projects which cumulatively are big. Yes, that takes longer than an EA, BUT the rewards could be significant. They include:

  • No need to do NEPA analysis, National Forest Management Act data collection or Endangered Species consultation for five years. Instead of doing EAs and having to do the same analysis over and over for each project, do all the analysis at once and do 20 projects together as one restoration plan. Then, the 20 projects will make more sense and do a better job for the land than if you did them all piecemeal. Do the analysis once and then do work in the woods for five years before you have to do analysis again.
  • 95% of your opposition will be gone. Why? If you comply with the law, collect and use good data, utilize good science and be open with everyone and keep them involved, the result will be better. Sure, there is 5% out there who will oppose anything the Forest Service (or other federal agencies) does, but how often do they sue? They do occasionally, but the they only win when the agency has broken the law.
  • Make your work truly bulletproof. For years WildLaw has heard about Forest Service people trying to “bulletproof” their EAs by using certain language or by making up shortcuts that they think will look like compliance with the law. Guess how many of these “bulletproof” EAs WildLaw has been able to shoot dead? The only way to “bulletproof” your work is to do the work right. Follow the law, use good science, be honest and open with the public, and no attorney with any sense will dare sue you.
  • Awards, big vehicles, commendations, accolades, promotions and fast career advancement (for solving the “analysis paralysis”), admiration from your fellow agency people and from a variety of folks in the public, and good beer and fine whiskey.

In woodworking, the saying goes “measure twice, cut once.” It means take the time to verify that the planned action is correct and then you get to take that action without making mistakes and without having to do the work over. For NEPA analysis, the same is true. Take the time to make sure what you are doing is right and done well, then you can do it without having a judge tell you to go do it over again. And over again....

The solution to NEPA “burdens” lies not in changing the rules of analysis but in changing how the analysis is done. For too long, agencies have compartmentalized (literally) their work. Trying to make each project look small and insignificant seemed like a good way to avoid doing population data collection, cumulative impacts analysis and a host of other things required by law for “big” projects. That hasn’t worked too well, has it?

Agencies need to stop looking at compartments and individual projects. Instead, they should use NEPA as a tool to assess what the land needs and what they can do to meet those needs over a longer term, at least five years. This is not project planning but rather an approach to how to implement plans with a broad vision instead of a microscope.

Main problems we see with EAs (in no particular order)(and many of these will be in the context of National Forest projects, which we review the most):

  • Emphasis with packing EA with boilerplate language. More does not make better; better makes better.
  • Lack of site-specific information about the project area and the impacts to it.
  • Lack of cumulative impacts identification and assessment.
  • Failure to consult with and use the expertise of local scientists.
  • In the rare species realm, the idea that “if we assume they are there and plan the project accordingly, things are okay.” The idea that you do not impact rare species if you assume they are there is a fallacy. It is impossible to know that mitigation measures and other actions to reduce impacts to rare species work unless there is some science showing they do. If you do not survey for rare species and just assume they are there, you have no way to know if your assumed mitigation works. Example: you can assume that Passenger Pigeons are in a project area and execute the project and its mitigation accordingly, but you will not have any Pigeons when you are done.
  • conversely, without truly looking for sensitive species there is no way to know whether they are present in a project area and how a project may impact them.
  • Similar to the above, the assumption that leaving habitat available for a species means that the species uses it. Without actual, on-the-ground, survey data, you have no way to know this. Example: the National Forests in the South have plenty of good habitat for Passenger Pigeons, so that means we have lots of them, right? You can build a $100 million baseball stadium in Slapout, Alabama, but that does not mean a major league team will use it. In order to know you are doing the right thing, you must know the facts about the land and about the impacts of your actions on it; you cannot guess, estimate, speculate or model reality. You have to know to know.
  • Lack of reasonable alternatives. Some EAs have even had only one action alternative (with the obligatory but readily dismissed “no action” alternative). Really give consideration to the “no action” alternative; it won’t kill you, honest. I know of two Forest Service projects (one in AL and one in LA) where, once the Ranger gave real thought to the “no action” alternative, they chose it. Action is not always the best action.
  • Do not limit your decision or your alternatives by drawing up an artificially narrow purpose and need for the action. Remember: if we can show a court that you fiddled with the purpose and need to predestine the outcome, we can get the project enjoined no matter how well you complied with the laws after that. Some forests are now giving full consideration to noncommercial methods of achieving the purpose and need; doing so does not mean you have to choose it but failing to consider the option when it is possible means losing in court. But some districts have chosen noncommercial alternatives, particularly for thinning young, dense stands of pines. Sometimes, not selling trees works best.
  • Conversion of natural forests, example: hardwoods to pine.
  • Perpetuation of problems. We saw half a dozen Southern Pine Beetle projects in 2001-02 that planned on logging infected Loblolly Pine and then planting Loblolly right back again. You cannot solve a problem if the solution recreates the very conditions that caused the problem in the first place. If you are not going to truly solve a problem, it would be better just to leave it alone. Districts that solved the problem replanted with Longleaf, which was what was supposed to be there.
  • BEs based on lack of data from project site and on overall population data on rare species.
  • “Site-specific” information that is clearly wrong. We do check the sites of projects from time to time; we won’t claim that we check every stand in every project, as we don’t have enough people or money for that. But we get out to more of them than you will ever know. The odds are if you are misrepresenting the situation on the ground, we will nail you on it sooner or later.
  • Assumption that “because what we are doing is supposed to be good for the environment, then we don’t have to do much analysis.” NEPA requires equal identification and analysis of all impacts, even “good” ones, to make sure that the real result of a proposal can be reasonably known ahead of time.
  • Use of “paper reality.” Example: “Visual Quality Objectives will not change due to clearcut.” VQOs are standards set on paper, and they are changed by changing the paper; they won’t change even if a nuclear blast hits the site. A clearcut will change the scenic and visual quality of an area even if Plan and paperwork says the VQO stays the same. NEPA requires assessment of real world impacts, and that duty cannot be foregone by saying your paper classifications would be changed by timber cut. Another example: classifying a site as a “pine site” in order to claim that cutting down the 100-year-old hardwoods there is “not conversion.”
  • Failure to show how mitigation measures will be applied in a site-specific manner and how they will work. Merely listing mitigation measures in the EA is not legally sufficient. You must show that they will reduce impacts to a level of insignificance or you HAVE TO prepare an EIS. If you have used those mitigation methods in the past and they have worked, don’t just say so; demonstrate that success in the EA through data, studies, research or even well-documented observations and photographs. Although a scientific study on how stream buffers in your district did indeed prevent sediment from entering the water is best, accounts of actual field observations of similar buffers on similar slopes and soils in the past that did show that sediment stopped yards form the stream is an acceptable demonstration of the impacts and results of mitigation. Unsupported claims of “best professional judgment” mean nothing, but judgment based on documented past experience is something worthwhile. Include in the EA accounts of past similar projects and how the mitigation measures worked there; include photos, maps, field notes, etc.
  • Misunderstanding of the “significance” standard in NEPA. An EIS must be prepared unless the agency can show that the impacts will be insignificant, either in themselves or through use of properly documented mitigation measures. If the impacts might be significant, or if the agency just does not know if they will be significant or not, the agency must prepare an EIS. Most districts assume that unless the impacts are clearly shown to be significant, then an EA is all that is needed; that is not the law. NEPA assumes that an EIS is required unless the EA can prove that the impacts will not be significant; failure to make that proof mandates an EIS. The burden is NOT on the public or environmental groups to prove significance.
  • Minimization of negative impacts, a lack of honesty about things being bad. Example: claims that a clearcut will not look bad, it will provide “visual diversity” or “a deeper view into the forest.” Use of euphemisms or contrived language (“timber harvest,” “visual diversity,” “regeneration cut,” etc.) Don’t make ridiculous claims like “portions of the public like how clearcuts look.” Yes, the 1/10 of 1% of the public who are loggers may like a clearcut but to “balance” that evenly with the 99.9% of people who do not is just deceptive. BE HONEST! A clearcut to restore the native forest type WILL look bad for many years; admit that but explain clearly that the adverse visual impact is needed to get the beneficial result of restoring the natural forest in that area. Admit where you lack data. Admit where you do not know if mitigation measures will work. We will be inclined to work with you to address those deficiencies if you admit them, but if you hide them, we will attack you (and rightfully so).
  • Attempts to minimize negative impacts by artificially limiting space and time of impacts analysis. Examples: using a three-year time frame for assessing impacts from clearcuts; real world impacts from a clearcut last much longer than three years. Limiting analysis to artificial boundaries such as compartments or Aaction area @ or a conveniently drawn “project area.” A clearcut in compartment X will have cumulative impacts (scenic, wildlife, etc.) with a clearcut 30 feet across a road from it in Compartment Y, but if EA analysis only looks at Compartment X or the watershed that holds X (although X and Y are compartments next to each other at the top of two adjacent watersheds), real world impacts will be ignored and public will be deceived by the paper. But a judge will see my photographs and video showing how you missed a cumulative impact that was just 30 feet from your project.
  • Attempts to force inappropriate projects into types that are categorically excluded from the requirement to conduct an EA. If the project is valid, considering the environmental impacts and informing the public can only make it better.

Suggestions for ways an agency can improve its NEPA compliance (in no particular order):

  • Better maps in EAs (need clear copies, color works best).
  • More detailed scoping notices.
  • Provide more information on projects even when they are categorically excluded from the EA requirement.
  • Distribute EAs and EISs on CD-ROM in addition to paper. You will save paper, and those of us who are computer savvy will appreciate it.
  • More site-specific description and information.
  • More identification and assessment of cumulative impacts. Really monitor after the project and develop real data on what impacts are. This will be very useful to you for future projects.
  • Less boilerplate language. Use it only when really appropriate; do not try to use it as a substitute for real work. Packing an EA or EIS with irrelevant information is a waste of your time; it will not “bulletproof” your work.
  • Use local data and studies. Less reliance on distant studies to justify action. Example: a southern National Forest in the 1990s used New England bird studies (from more than 1000 miles away) on impacts from clearcuts planned in Alabama (totally irrelevant to local climate, forests and bird species) and rejected local studies done in that very district by the state’s foremost ornithologist; even though those local studies were complementary to 80% of what the district was doing in its timber program. Things like this make for easy winning appeals and lawsuits for us.
  • Seek out and use work and opinions of local experts. Local university scientists, studies funded by environmental groups (For five years, WildLaw and its client Wild Alabama funded more studies on the National Forests of Alabama than anyone, including the agency), Natural Heritage Programs, National Speleological Society (for finding caves and assessing them for endangered bats), etc. The Forest Service admits it lacks resources to do all the scientific research it would like, so you need to be more proactive in getting help from outside sources. Form networks with experts BEFORE projects are proposed and get their input at all stages. Don’t just assume experts will know about projects and comment if needed, because often they do not.
  • Consider more alternatives.
  • Give consideration to economic impacts other than those that support the proposal. For example, when planning a timber sale, consider the effects of lost recreational use.
  • Use reality. If real world and paper classifications do not match, admit it and assess the real world impacts; do not sweep them under the rug.
  • Admit it when you don’t know things. NEPA does not require perfect knowledge but a reasonable attempt to identify impacts. Do the best you can and admit data gaps. “Best professional judgment” means nothing when you have collected no data; when you use your “judgment” on a foundation of nothing, you are just guessing, and smart judges know it. But when you have made a good, honest effort to collect what data and research you could and then make reasonable assumptions based on best professional judgment to fill gaps, that can be okay.
  • And when in doubt about the data and impacts, be humble and act cautiously. Do not take a “see no evil” approach. Be respectful of the fact that you really do not know everything there is to know about a forest; no one every will. Environmentalists are much more willing to work with agency people who recognize and admit the limitations of their knowledge. Agency people who act like they know it all are big, bright (and EASY) targets for us.
  • Give equal weight to other uses of the land in question.
  • Give REAL consideration to the thoughts, ideas, and (yes) feelings of the people who use and love the area. In some areas and in many ways, the people who use the area for hunting, hiking, etc. do indeed know the place better than the agency people do, and you must be honest and brave enough to admit that fact and REALLY seek their help. Do not just pretend to seek public input and then brush it off and do what you want anyway. Example: a number of truly world-class archeological finds have been made on the Bankhead National Forest in the last 15 years, ALL by local people, none by the Forest Service.
  • Distribute information widely. Make the mailing lists open; assume that people want the stuff unless they tell you otherwise. Do not try ways to get people off the list so that you can “hide” projects from them; do not send out quarterly noticessaying, “If you do not return this card within ten days, we will assume you have no further interest and will drop you from the list.” Your default should be that people are interested until they say they are not, not the reverse. In this age of electronic mailing lists, you have no excuse for not including everyone on everything.
  • Get out into the woods with environmentalists. We are not your enemies, unless force us to be. WildLaw has often found common ground while actually out standing on the ground and discussing things as we saw them. Invite all environmentalists who comment or show interest in your forest for hikes, cook outs, canoeing, camping, whatever. Those who are truly interested in the forest and the project will accept and be willing to talk with you. Those who refuse your repeated attempts to reach out to them are more interested in their agenda than anything real; we cannot help you with those folks other than to say to do your job right and the best you can and ignore them the best you can. If you comply with the law, they cannot beat you in court. Environmentalists only win in court when they are right; there is no “bias” among federal judges toward environmentalists. We have practiced before more than 200 judges; none of them let us have what we wanted just because we wanted it.

Remember: if an agency hides things, minimizes real world impacts or evades full compliance with the laws and regulations, the public will assume that it is up to something, and they will challenge the proposal. Even if a proposal will have beneficial results (such as restoring the natural forests in that area), if you cut corners, we have to assume that you are up to something dastardly. Otherwise, why would you be cutting corners? Honesty and openness in all things will do you much more good than anything else.

NEPA is a tool for exploring environmental issues and public concern about these issues at a point when true problems can be resolved without impeding projects. When the NEPA process is followed in the spirit of collaboration, only flawed projects will be challenged. NEPA results in improved agency work.

I deeply appreciate this opportunity to address the Committee and present this testimony before it. I remain committed to working with the Committee’s members and staff to find real solutions for making NEPA a better and more effective law. Representative Joe Barton has publicly invited environmental groups “to come out of the trenches” and meet you halfway. If that invitation is truly sincere, as we believe it is, we are here to do that.

Thank you,

Sandra Nichols

 

Witness Contact Information:

Sandra Nichols, Staff Attorney
WildLaw
8116 Old Federal Road, Suite C
Montgomery, AL 36117
334-396-4729
334-396-9076 (fax)
334- 354-7039 (cell)

Sandra@wildlaw.org
www.wildlaw.org

1. 42 U.S.C. ' ' 4321 et seq.

2. 42 U.S.C. ' 4432(C)(i).

3. See generally Robertson v. Methow Valley Citizens Council, 109 S.Ct. 1835 (1989), and Marsh v. Oregon Nat. Resources Council, 109 S.Ct. 1851 (1989).