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Trump proposal to weaken project reviews threatens the ‘Magna Carta of environmental law’

Building the U.S. Interstate highway system in the 1950s and 60s is often cited as one of government’s great achievements. But it had harmful impacts too. Many city communities were bulldozed to make space for freeways. Across the nation, people vigorously objected to having no say in these decisions, leading to “freeway revolts.”

This outcry, coupled with the growing environmental movement, gave rise to the idea – revolutionary at the time – that agencies should take a hard look at the environmental impacts of their actions, consider reasonable alternatives and allow community input. The National Environmental Policy Act (NEPA), enacted in 1970, codified these principles and allowed citizens to sue if they believed government had not complied. Because it represents a turning point in thinking about environmental protection, NEPA has been called the “Magna Carta of environmental law.”

Despite NEPA’s demonstrated successes, critics have attacked it for years, usually based on anecdotes claiming that lengthy environmental reviews caused project delays. President Donald Trump’s infrastructure initiative is the latest example. And on May 3, 2018, the Trump administration announced that it will soon propose changes to the rules that guide federal agencies carrying out NEPA reviews.

As attorneys who held senior positions at the Environmental Protection Agency during the Obama administration, including managing the agency’s NEPA office, we have extensive experience with NEPA reviews. Expert studies reveal a vast disconnect between the evidence, which shows that NEPA is not the cause of project delays, and the sweeping changes that NEPA critics are proposing. This disconnect reveals that current proposals aren’t really about speeding up projects, but are instead part of a broad deregulatory agenda that prioritizes business interests over public benefits from environmental protection.

Poster opposing a planned freeway in Washington, D.C., that was ultimately canceled in 1977. Greater Greater Washington, CC BY
NEPA reviews aren’t the cause of project delays
Over more than four decades, NEPA has helped government agencies make smarter choices about public infrastructure, reducing damage to both natural environments and communities and avoiding the costs of correcting ill-considered projects.

For example, in the 1990s Michigan’s state transportation agency wanted to build a four-lane highway across a huge swath of important wetlands. Using NEPA, citizens forced the state to consider alternatives. Ultimately the state decided to expand an existing highway instead, dramatically reducing environmental harm and saving US$1.5 billion. Similar stories have occurred across the country.

Critics have long used “NEPA is slowing projects down!” as their rallying cry. Independent experts have looked at the evidence and reached a different conclusion.

The most authoritative independent studies were done by the Government Accounting Office in 2014 and the Congressional Research Service in 2011 and 2012. They found that the vast majority of projects have very streamlined reviews.

About 95 percent of all projects subject to NEPA go through a very short process called a “categorical exclusion” that usually takes from a few days to a few months. Another 4 percent have a short and straightforward review, called an “environmental assessment,” that usually takes between four and 18 months. Less than 1 percent of projects are subject to a full review, which is called an “environmental impact statement.”

Typically, these are large-scale initiatives such as a new highway, a major dredging project or a multistate pipeline. You wouldn’t know it from rhetoric in Washington, but the sweeping changes being proposed to NEPA are focused on less than 1 percent of projects.

These independent investigations also found that NEPA reviews are not the reason that the biggest projects take time. State and local issues, such as funding shortfalls, changing priorities and local controversy, are the most significant influence on whether a project moves forward quickly or takes longer than anticipated. Of course, there are examples where environmental reviews took too long, but in many cases these reviews started and stopped for reasons unrelated to environmental issues.
Not about efficiency
In fact, by requiring agencies to consider alternatives to their envisioned projects, environmental reviews can speed things up by identifying better options and solving problems that could be costly or cause delays in the long run – a common issue in highway construction, for example. As our shop teachers advised, “Measure twice, cut once.” This is one reason why federal agencies that use NEPA most, including the Department of Transportation, the U.S. Forest Service and the Department of Energy, have long voiced support for it.

Enshrining unsupported policy in statutes passed by Congress makes those choices much harder to fix. Here’s what the president wants to do that would require changing the law:

– Take environmental agencies out of NEPA reviews. Congress recognized that some federal agencies are focused on building things, like highways or energy projects, and that protecting the environment is not their mission or area of expertise. That’s why it gave EPA a central role in NEPA studies by other agencies.

EPA involvement has helped reduce adverse environmental impacts through early up front coordination, without adding time. The agency routinely produces its comments within 30 days. The Trump infrastructure plan proposes to eliminate EPA’s review role.

– Cut a huge hole in consideration of alternatives. The Trump proposal would insert waffle words, like provisions limiting alternatives to those that the applicant finds “economically feasible” or are within the applicant’s “capability,” into NEPA’s requirement for agencies to consider reasonable alternatives. This approach allows applicants to avoid considering options they don’t like.

Consideration of alternatives is the heart of NEPA. Thinking hard about how projects can be done with less environmental damage – for example, by reusing an already developed site instead of paving over open space – improves designs, saves money and builds public support.

– Set the stage for getting rid of NEPA completely. In case anyone misses the point, the Trump plan allows some projects to bypass all environmental reviews on a “pilot” basis. A recent report by the conservative Heritage Foundation follows the same playbook by calling for repeal of NEPA.

Pete Brunner of Falmouth, Maine, casts for Atlantic salmon on the Penobscot River in 2006. A NEPA review led to denial in 1997 of a permit for a major hydropower plant on the Penobscot after the study showed that it would harm salmon. AP Photo/Robert F. Bukaty, File
Change NEPA practice, not the law
Over the last 45 years federal agencies have improved their processes for carrying out NEPA reviews, through steps such as providing more up front consultation. The Obama administration was continuing that effort with a number of consensus efficiency improvements that show promise for speeding things up without undercutting NEPA’s important goals.

By requiring government agencies to think before they act, NEPA has avoided countless harmful and ill-considered ideas. As the secretary of energy said in 1992, after halting a project that would have cost billions, “[T]hank God for NEPA because there were so many pressures to make a selection for a technology that might have been forced upon us and that would have been wrong for the country.”

Federal agencies should keep finding ways to implement NEPA more efficiently. What the federal government shouldn’t do is make enormous statutory changes based on incorrect claims about a fraction of 1 percent of projects – or disregard the lesson of the last 45 years that the most efficient choice is to build things right the first time.
About the authors: Janet McCabe served as Deputy Assistant Administrator for the U.S. Environmental Protection Agency’s Office of Air and Radiation (OAR) from 2009 to 2013, and as Acting Assistant Administrator for OAR from 2013-2017. She is a senior law fellow at the Environmental Law and Policy Center and a member of Duke Energy’s Indiana Citizens Advisory Board. Cynthia Giles served as Assistant Administrator for the U.S. Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance from 2009 to 2017. She is currently the Director of Strategic Initiatives and Executive Fellow at the Energy & Environment Lab at the University of Chicago.
This article was originally published on The Conversation. To read the original article, please click here.

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Tribes Challenge Forest Service Approval for Toxic Open-Pit Copper Mine on Sacred Land

Tucson, AZ (April 12, 2018) — The Tohono O’odham Nation, the Pascua Yaqui Tribe and the Hopi Tribe filed a complaint in U.S. District Court today challenging the approval by the U.S. Forest Service of a plan by Hudbay Minerals Inc. of Canada to develop a sprawling toxic open pit copper mine on public land. The tribes are represented by Earthjustice, a non-profit environmental law firm.

The proposed Rosemont Copper Mine would be located about 30 miles south of Tucson in the Santa Rita Mountains, a place of great cultural and ecological significance. The tribes, representing more than 50,000 enrolled members, have resided in this region since time immemorial and have a deep connection to the land and wildlife. The proposed mine site lies within the tribes’ ancestral homelands and contains numerous sacred sites, ancestral villages and burial grounds. The mine site is also home to the endangered jaguar, an animal of spiritual significance to the tribes.

The proposed mine, to be developed by Hudbay Minerals Inc., would be devastating to these cultural and natural values. The mine would transform 3,653 acres of National Forest land that is publicly-owned and of important cultural and religious significance to the tribes into an industrial mining zone. The mine would require the excavation of an open pit over a mile wide and a half-mile deep to be served by roads, ore processing facilities, and groundwater pumping. The pit will be surrounded by waste piles containing over a billion tons of waste rock and tailings.

The Forest Service admits that the damage to cultural resources would be “severe, irreversible and irretrievable.” It would destroy 82 historic places and desecrate at least 31 known gravesites, though numerous others are likely to be discovered during the excavation process. Despite these impacts, the Forest Service approved the Final Environmental Impact Statement last June to allow the mine to proceed. 

In total, a dozen Arizona tribes have expressed concerns with this mine project, participating in meetings, public hearings, consultations. The Tohono O’odham and Pascua Yaqui Tribes have passed formal resolutions of opposition in 2009 and 2013, respectively. The Tohono O’odham Nation also produced a short film, Ours is the Land, which details the significance of Ce:wi Duag (Santa Rita Mountains) and the irreparable harm the mine would cause.

“The Rosemont Copper project would destroy cultural and archeological sites on our traditional lands, including the graves of our ancestors,” said Tohono O’odham Nation Chairman Edward D. Manuel. “Consider what it would be like if a foreign company proposed excavating Arlington National Cemetery. All Americans treasure this cemetery, just like our tribes treasure the land this mine will desecrate.”

Pascua Yaqui Tribe Chairman Robert Valencia said, “The proposed Rosemont Copper Mine would defile our heritage, and it also threatens our future. The mine would destroy lands, animals, and plants that have great spiritual significance to us. And, its impacts to our region’s groundwater resources poses a danger that will long outlast any mining operations.”

“The Hopi Tribe continues to hope that someday a Forest Service supervisor’s decision will reflect the Forest Service’s listening to tribes regarding Sacred Sites and Traditional Cultural Properties, respect the natural water, wildlife, and night sky values of the tribes, and assist the Forest Service in emerging from the 19th century into the 21st,” said Hopi Tribe Vice Chairman Clark W. Tenakhongva.

The mine also would cause permanent damage to precarious groundwater resources in the arid region. Seeps and springs which are not only sacred to the tribes but also support native plants and wildlife, would be depleted. After the copper is gone and the company abandons the mine, a toxic lake would form in the pit, creating a hydraulic sink that will deplete streams, collect polluted runoff and siphon water from the regional aquifer. This toxic lake will never be reclaimed or remediated.

“This mine will have devastating impacts on sacred lands long used by the tribes for prayer, ceremonies, and to connect with their past and their ancestors,” said Heidi McIntosh, an attorney with Earthjustice. “The Forest Service should have rejected Hudbay’s request to use these sacred lands as a dumping ground for toxic waste rock, mine tailings, and processing plants. Instead, the Forest Service bowed to the mining company and then denied it had the authority to protect this uniquely important place. We’re asking the Court to right this injustice.”

The complaint is based on the Forest Service’s violations of the Forest Service Organic Act, the National Environmental Policy Act, and the National Historic Preservation Act. The tribes are asking the Court to reverse the Forest Service’s decision and enjoin construction of the mine.

Read the legal document.

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Preserving Local Voices in Broadband Deployment

I’m not a telecommunications lawyer and don’t usually follow what’s happening at the Federal Communications Commission, but this week I am. At its March 22 meeting, the Commission is set to vote on rule changes that would remove the deployment of small wireless facilities from public participation and environmental review currently in place. NRDC opposes the changes.
What the FCC’s Order Does

The FCC published its Wireless Streamlining Report and Order on March 1, 2018. The Commission will vote on whether to approve the order on March 22.
The Order makes two changes to the FCC’s rules implementing the National Environmental Policy Act (NEPA). First, the Order excludes facilities placed in a floodplain as long as they are placed at least one foot above the base flood elevation from NEPA review. Previously, any facility located in a floodplain required at least an Environmental Assessment (EA) under NEPA. Second, the Order changes the rule requiring an EA to exclude: (1) the construction of mobile stations; and (2) small wireless facilities meeting certain criteria.
The Order also excludes the deployment of wireless communication facilities from the definition of “undertaking” under the National Historic Preservation Act (NHPA). Section 106 of the NHPA requires that “the head of any Federal department or independent agency” shall take into account the effect of any proposed undertaking on historic properties.

Why the FCC’s Order Is a Bad Idea
1. We can rapidly deploy broadband technology without shutting local voices out. The radio spectrum provides for numerous types of wireless communication. The FCC licenses this spectrum for various uses. Currently, a voracious demand for wireless access to the internet (aka “broadband”) dominates such uses. 

The next generation of wireless technology—5G—offers faster data speeds and more reliable service. Rather than large, widely-spaced towers, the new 5G technology requires distributed antenna services and small cell facilities sited much more closely together. 

While the smaller size of these facilities may limit their impacts on a community’s historic, cultural and natural resources, the dramatic increase in their numbers mean more sites will be affected and cumulative impacts could be significant. Involving local elected officials and community members in the planning decisions will help ensure wiser and less controversial decisions.

2. The FCC’s Order discourages collaboration. Numerous stakeholders worked diligently over many months and years to develop a system of review that preserves local voices while allowing rapid deployment of broadband facilities. Like NEPA, the NHPA provides for limited review where impacts are limited.  The FCC has developed Programmatic Agreements with the Advisory Council on Historic Preservation and others to provide for streamlined review of impacts on historic and cultural resources. The FCC tosses these collaborative efforts aside.  As a result, diverse stakeholders oppose the Order including: the National Congress of American Indians and the National League of Cities, as well as individual tribes and cities across the country.

3. The FCC’s Order is unlawful. The plain language of both NEPA and the NHPA applies these laws to the FCC licensing at issue here. Courts have consistently treated licensing as both a “major federal action” under NEPA and an “undertaking” under the NHPA. The Commission can adjust the amount of review based on the minimal impacts of a licensed activity, but it cannot avoid review all together.

While Congress has encouraged the rapid deployment of wireless technology, it has mandated that it be done in a way that protects the environment as well as historic and cultural resources. NRDC supports the rapid deployment of wireless technology especially to remote communities which currently lack service. Future progress, however, does not require that we forget our past or sacrifice a healthy, vibrant and secure environment.

Sharon Buccino is NRDC’s Land and Wildlife Program Director. Prior to joining NRDC, she practiced environmental and administrative law with a private firm in Washington, D.C. and worked for the Alaska Supreme Court.

 

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The Crenshaw/LAX Transit Corridor Project

When construction wraps up on Los Angeles’ Crenshaw/LAX Line in 2019, the highly anticipated light rail route will connect a key corridor of the city from Jefferson Park to El Segundo and add a long-sought rail connection from downtown to one of the busiest airports in the world.

Getting the project off the ground, however, was no small feat. Without the approval of “Measure R,” a half-cent sales tax approved by Los Angeles County voters in 2009 that provided a dedicated funding for twelve metro area transit projects, the city simply wouldn’t have had the money to proceed.

Early project planning and work on the Environmental Impact Statement (EIS) to construct the 8.5–mile line connecting two existing subway lines began in 2009.

During this review process, the Federal Transit Administration (FTA) and Los Angeles Metro officials jointly identified a rarely-used five-mile long freight rail line instead of building new tracks that would have disrupted several neighborhoods and proven far costlier.

That decision decreased project costs, saved time, and reduced disturbances for the nearby community by using an existing right-of-way while providing significant environmental benefits, economic development, and employment opportunities throughout Los Angeles County.

One of the visionary elements of National Environmental Policy Act (NEPA) EPA is its creation of broad opportunities for public participation in government decisions that affect their environment and local communities. Throughout the environmental review and planning process, local residents were continuously engaged in dialogue to ensure the project would be completed in an equitable, beneficial, and resourceful way that met the needs of local communities.

The Crenshaw/LAX Community Leadership Council (CLC) was established thereafter to provide feedback and carries out its work through topic-specific working groups, quarterly community meetings, bi-monthly construction meetings and special project collaborations with Metro staff and other community groups. Residents of Leimert Park Village, for example won the battle for their own station and for the train to run underground and out of site for its first three stops.

One of the Federal Transit Administration’s first projects piloting a new process that helped identify and mitigate project risks more efficiently, the project’s Environmental Impact Statement (EIS) was finalized less than two years later in 2011 and the Crenshaw/LAX light-rail alternative moved forward.

The Crenshaw/LAX transit corridor provides two key lessons. First, when projects are assigned dedicated sources of funding (e.g., Los Angeles’ Measure M) the NEPA review process is normally swift and rarely a major barrier to project completion. Project delays are more often than not the result of a combination of inadequate funding and local opposition. The NEPA review process and Environmental Impact Statement (EIS) were completed in less than two years.

Second, without the NEPA review process, tens of thousands of residents from Inglewood to El Segundo would have been able to weigh in and provide feedback on the Crenshaw/LAX corridor project that stood to affect their livelihood and quality of life. Similarly, without the NEPA review process, federal decision-makers might not have been able to identify that a rarely-used freight railroad could be utilized at a lower cost and with less disruption to local communities.

Scheduled for completion in 2019, the Crenshaw/LAX line will run from the Jefferson Park neighborhood in the north to El Segundo in the south with an estimated daily ridership of 16,000.

 

[1] “Final Environmental Impact Statement/Final Environmental Impact Report: Crenshaw/LAX Transit Corridor.” Federal Transit Association (FTA). August 31, 2011. Available at: 
http://media.metro.net/projects_studies/crenshaw/images/FEIS_FEIR/00_Cover_Table_of_Contents.pdf 

[2] “Record of Decision: Crenshaw/LAX Transit Corridor.” Federal Transit Association (FTA). Deceber 30, 2011. Available at: 
http://media.metro.net/projects_studies/crenshaw/images/20111230_CrenshawLAX_Record_of_Decision.pdf

[3] “About the Crenshaw/LAX Community Leadership Council (CLC).” Los Angeles County Metropolitan Transportation Authority. Available at: 
https://www.metro.net/projects/crenshaw_corridor/clc-about/

[4] The Crenshaw Line will open in 2019—how are residents feeling about it?” LA Curbed. September 22, 2017. Available at: 
https://la.curbed.com/2017/9/22/16347450/crenshaw-line-lax-leimert-park-metro-development

[5] “Community Organizations Shed Light On New Crenshaw District.” Los Angeles Sentinel. December 2, 2015. Available at: 

Community Organizations Shed Light On New Crenshaw District

 

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Trump Administration Waives Environmental Laws for New Mexico Border Wall

TUCSON (January 22, 2018) — The Trump administration today waived more than 30 environmental laws to speed construction of 20 miles of border wall in eastern New Mexico, the third time the “REAL ID” waiver has been used by the Trump administration.

The waiver is meant to allow construction of the New Mexico border wall section without having to comply with laws that protect clean air, clean water, public lands or endangered wildlife.

“The Trump administration is stopping at nothing to ram through this destructive border wall,” said Brian Segee, a senior attorney with the Center for Biological Diversity. “Trump’s divisive border wall is a humanitarian and environmental disaster, and it won’t do anything to stop illegal drug or human smuggling.”

Today’s action will allow the U.S. Department of Homeland Security to waive more than 30 environmental and other laws to convert 20 miles of vehicle barriers into bollard walls along the border west of El Paso, Texas, at the Santa Teresa Land Port of Entry. The Center is considering whether to challenge the waiver in court.

Last year the Center sued to challenge the Trump administration’s use of the waiver to build replacement walls south of San Diego. The lawsuit states that waiver authority expired years ago, it’s an unconstitutional delegation of power to the Department of Homeland Security, and the wall violates the Endangered Species Act.

A hearing on the case is scheduled Feb. 9 in U.S. District Court in San Diego. Similar lawsuits, filed by California Attorney General Xavier Becerra and other conservation groups, have been consolidated into one case before U.S. District Judge Gonzalo Curiel.

Beyond jeopardizing wildlife, endangered species and public lands, the U.S.-Mexico border wall is part of a larger strategy of ongoing border militarization that damages human rights, civil liberties, native lands, local businesses and international relations. The border wall impedes the natural migrations of people and wildlife that are essential to healthy diversity.

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Saving Puerto Rico’s El Yunque Rainforest

At just under 30,000 acres, El Yunque is our country’s smallest national forest and the United States’ only tropical rainforest in the national forest system. For Puertoricaños, El Yunque is a cultural jewel, largely as a result of its unique Taíno petroglyphs (rock engravings) made by their ancestors – the Taino people.

Puertoricaños were understandably upset when the Federal Highway Administration (FHWA) proposed to slice the preserve in half to rebuild a long-closed portion of Highway PR 191 (“Highway 191”) back in 1992.

Citing a ten-year-old Environmental Assessment (EA) dating back to 1982, FHWA determined that an EIS was not essential for deciding whether to reopen the road and issued a “Finding of No Significant Impact” (FONSI) to continue with the construction project. In failing to complete a full environmental review, FHWA sought to willfully ignore the proposal’s potential impacts on the island’s endangered species as well as the increased likelihood of rock slides.

When a court found that FHWA had circumvented the National Environmental Policy Act (NEPA) review process, the judge promptly ordered that a full environmental impact assessment should be carried out before any construction began. FHWA subsequently decided to drop the project rather than undertake the study and disclose the project’s full impacts on El Yunque rainforest.

Today, the rainforest remains intact and the drive around it to the new Forest Service recreation area on its far side takes a mere 25 minutes on existing roads.

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