TESTIMONY OF KATHLEEN A. McGINTY
CHAIR, COUNCIL ON ENVIRONMENTAL QUALITY
EXECUTIVE OFFICE OF THE PRESIDENT
BEFORE THE HOUSE RESOURCES COMMITTEE
MARCH 18, 1998
Mr. Chairman, Members of the House Resources Committee:
I am pleased to have the opportunity to appear before the Committee to discuss the National Environmental Policy Act (NEPA). As you know, Congress passed the National Environmental Policy Act in 1969 and President Nixon signed it into law on January 1, 1970. This landmark statute became, and today remains, the foundation of our nation's environmental policy making. NEPA's passage marked an environmental awakening in America. To understand what inspired Congress to enact this far-reaching statute, it is helpful to recall the eloquent words of Senator Henry Jackson, one of its principal authors. "What is involved here," he said, "is a congressional declaration that we do not intend, as a government or a people, to initiate actions which endanger the continued existence or health of mankind: that we will not intentionally initiate actions which do irreparable damage to the air, land and water which support life on earth."
Congress did not simply issue a declaration, however. The framers of this statute understood that true environmental protection could be achieved only by incorporating this goal into the very fabric of federal decision making, and by integrating it as well with our social and economic aspirations. Indeed, in the words of the statute itself, federal agencies are to conduct their programs in a way "calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature exist in productive harmony, and fulfill the social, economic and other requirements of present and future generations of Americans."
In pursuit of this overarching goal, the statute set forth four principles that represent the pillars of NEPA. The first, as I have already noted, is the integration of environmental, economic and social objectives -- the explicit recognition that they are not contradictory or competing, but rather inextricably linked. The second is sound decision making based on thorough, objective analysis of all relevant data. The third is effective coordination of all federal players in the development and execution of environmental policy. And the fourth is the democratization of decision making -- giving citizens and communities a direct voice in decisions affecting their environment and their well-being.
To advance these principles in the day-to-day workings of our government, NEPA established three primary mechanisms. The first is the agency that I chair, the Council on Environmental Quality (CEQ). Congress recognized the need for a permanent environmental body within the Executive Office of the President to advise the President on the development of environmental policy. CEQ's functions include monitoring environmental trends, assessing the success of existing policies, overseeing and coordinating policy development, advising federal agencies on their responsibilities under NEPA and, when necessary, mediating conflicts among the agencies. The second mechanism is the requirement that agencies fully integrate NEPA's goals and policies into both their planning and their day-to-day activities. The third is the environmental review process, which was intended to do something other than generate dry, lengthy documents called environmental impact statements. Rather, the objective is to ensure rational, informed decision making. Later in this testimony, I will describe in some detail our efforts to reinvent this process to better serve the public and the environment.
I believe strongly in the mission declared for us by Congress nearly 30 years ago, and in my tenure as chair of CEQ, I have strived to fulfill it in a way that both honors the intent of NEPA's framers and meets new types of environmental challenges. Now, as citizens and government leaders recognize the need for "sustainable development," NEPA's directive to harmonize economic, social and environmental concerns was prescient, indeed. This Administration is absolutely committed to the principle that a healthy environment and a strong economy go hand in hand -- that environmental protection need not burden business or taxpayers but, to the contrary, can open new economic opportunity and ensure thriving communities for all Americans. In that spirit, CEQ has worked to bring the variety of voices to the table in every major issue and to innovate and bring common-sense reforms to environmental policy making overall. I would like now to review some of our major successes in advancing the fundamental principles of NEPA, and our efforts to reinvent the environmental review process.
Through NEPA, CEQ has strived to promote sound decision making, integrate environmental, economic and social considerations, coordinate the actions of federal agencies, and allow local government and the public a stronger voice in federal decision making. Through a series of concrete examples, I would like to illustrate how NEPA works not only to protect the environment, but also to bring economic and social issues into environmental policy making, give citizens a seat at the table, and save scarce federal resources.
Saving Money and Wetlands in Myrtle Beach, South Carolina - Often, NEPA represents the best, if not only, opportunity for citizens directly to participate in federal decision making and direct an agency's attention to community concerns. One such example is the Conway Bypass project in Myrtle Beach, South Carolina. In response to community concerns, the Federal Highway Administration (FHWA) created a wetland mitigation bank through innovative use of the NEPA mitigation process and, working with the South Carolina Department of Transportation, was able to preserve one of the East Coast's most significant ecological reserves. It is worth noting a second result -- a $53 million savings in bridge costs. Additional savings are anticipated from the planned future use of the Sandy Island Mitigation site in the Carolina Bays Parkway Project and the Mark Clark Expressway project. This success was also made possible by the coordination, encouraged by NEPA, of several agencies including FHWA, the Army Corps of Engineers (COE), the Environmental Protection Agency (EPA), the Fish and Wildlife Service (FWS), the National Marine Fisheries Service (NMFS) and numerous state agencies.
Defining a New Mission for DOE - Many agencies have learned NEPA's value as a planning tool to help define their activities and mission. The Department of Energy (DOE), for instance, has made extensive and effective use of programmatic and site-wide NEPA reviews in determining how best to transform its nuclear weapons complex to appropriate post-Cold War functions and fulfill its environmental cleanup obligations. As Secretary of Energy, Admiral James Watkins initiated a reinvigorated NEPA process at DOE and said it was key to the decision to defer selection of a costly tritium production technology. "Thank God for NEPA," Admiral Watkins told the House Armed Services Committee in 1992, "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."
Customs Service Facilities on the Rio Grande - When the U.S. Customs Service proposed a a major expansion of a border station to provide import lot and docking facilities on the Rio Grande near the Juarez/Lincoln International Bridge between the U.S. and Mexico, the General Services Administration (GSA) undertook planning for the project and began preparation of an EIS examining six different ways to build the facilities. GSA also examined a "no action" alternative, as required by CEQ regulations. The projected costs for building the facilities ranged from $27 million to $54 million. However, time and motion studies conducted for EIS purposes showed that backups at the existing facility resulted from too few inspectors rather than too few docks. Computer modeling for the EIS indicated that with new facilities already planned or under construction in the vicinity, there would be no need for the facility until at least sometime after 2020. As a result, the "no action" alternative was selected and the money projected for use on the project was saved.
Highway Projects in the Atlanta Metropolitan Region - CEQ recently mediated a dispute between EPA, the U.S. Department of Transportation (DOT), and the Georgia Department of Transportation that concerned five highway projects in the Atlanta area. Vital highway improvements were threatened with delay -- or prohibition -- as EPA rightly objected that the region was not making sufficient progress in improving air quality. With CEQ's mediation, an agreement was reached to approve unconditionally three projects while giving limited and conditional approval to the two remaining projects. Also, as a result of these negotiations, the Georgia Department of Transportation agreed to develop a transportation plan within 18 months that will demonstrate exactly how federal air quality standards will be achieved in the Atlanta region.
New York-New Jersey Harbor Dredging - CEQ has continued to oversee the Administration effort that resolved the impasse over dredging in the Port of New York and New Jersey. For years, dredging permits had been struck down or held up by the threat of litigation by groups objecting to offshore disposal. Under a plan developed by CEQ and supported by a broad range of industry, labor, and environmental groups, EPA and the Army Corps revamped the dredging permit process so that more dredging was authorized in one year than had been authorized in the preceding three years combined. EPA closed the controversial Mud Dump Site off of New Jersey's coast, while establishing a remediation site that will result in remediation of toxic hot spots and beneficial use of clean dredged material from the harbor. CEQ continues to oversee progress in the Port, as well as to work with other ports and concerned Members of Congress on infrastructure needs, permitting issues, and dredge material disposal.
Agreement on California's Bay-Delta - CEQ continues to play a central role in a state-federal partnership seeking a lasting solution to long-standing water conflicts in California. The historic Bay-Delta Accord, reached in December 1994 and renewed three years later, has been instrumental in bringing contentious parties to the table to resolve water allocation issues in the Sacramento-San Joaquin River system in Northern California. It set the stage the CALFED Bay-Delta program, a cooperative interagency effort involving state and Federal agencies with management and regulatory responsibilities in the Bay-Delta. Bay-Delta stakeholders -- agricultural, industrial and urban water users, and environmental groups -- are involved in problem solving and developing long-term solutions to restore fish and wildlife habitat, to improve flood protection, to provide adequate water supply to all users, and to ensure clean water. The CALFED Bay-Delta Program will work in the coming year to find a "preferred alternative" that meets the program's goals and satisfies stakeholder concerns.
Resource Conservation and Recovery Act Reform - CEQ convened a series of discussions among concerned constituencies, representatives of state governments, and a bipartisan Congressional group to develop a consensus on changes to the Resource Conservation and Recovery Act (RCRA) that would reform the regulation of remediation waste. These discussions advanced the President's initiatives for reinventing environmental regulation and complemented work on RCRA reform initiated by Senators Lott and Breaux in the 104th Congress. The General Accounting Office (GAO) participated in the meetings, which in part formed the basis for a later GAO report highlighting the need for targeted RCRA reform. CEQ and EPA are working with Senate offices to develop a consensus bill that is expected to provide the basis for a RCRA reform bill in the second session of the 105th Congress.
Floodplain Management - CEQ, in close cooperation with the Office of Management and Budget (OMB), has led an intergovernmental effort to encourage Federal agencies, state and local governments and nongovernmental organizations to afford communities a variety of choices in flood response, including non-structural alternatives as well as traditional structural levee repair. CEQ is working with Federal agencies to implement the policy and program recommendations derived from recent experiences with disastrous flooding in the Midwest, the Northwest, and California. Successful strategies clearly depend on interagency cooperation and incorporation of environmental considerations into response planning in an efficient and effective way. As part of this effort, the intergovernmental committee will host a flood workshop to gather further expertise in flood management in mid-1998.
One of the overarching goals of this Administration is to reinvent the federal government to do more with less -- to create a leaner, more flexible government that is a catalyst for new, innovative ideas and gives America's people the tools they need to make the most of their lives.
At CEQ, we have applied this philosophy by working to reinvent NEPA. We recognize that despite its many successes, NEPA, like any statute, is not always implemented as effectively as it might be. We are committed to reinventing NEPA to reduce unnecessary delays, save taxpayer money and promote sensible, cost-effective reform of environmental decision making. We do this every day in our routine oversight activities. But, we also have recognized the need for a more systematic effort to enhance NEPA's performance throughout the federal government.
Following an exhaustive analysis of NEPA's implementation in the past, we launched the NEPA Reinvention Project, applying those findings to agency activities through a series of pilot projects. We were poised to expand the Reinvention Project but, regrettably, were forced instead to suspend the effort when Congress withheld the necessary resources. We remain firmly committed to the project's goals and wish to engage Congress in a constructive dialogue concerning how best to proceed with this effort.
I am extremely proud of the progress we have made in reinventing NEPA and would like to review some of the highlights, beginning with successes in our day-to-day administration of the statute.
Overseeing NEPA Implementation
One of the critical roles assigned to CEQ is overseeing implementation of that part of NEPA that requires agencies to analyze the likely environmental, social and economic effects of any action they propose that has a significant impact on the human environment. Under regulations adopted by CEQ in 1978 and amended in 1986, and regularly updated through guidance to the agencies, this analysis may take the form of an environmental assessment and, when necessary, a detailed environmental impact statement. In any given year, Federal agencies and departments prepare approximately 500 draft, final and supplemental environmental impact statements and 50,000 environmental assessments.
In the course of our routine oversight functions, we seek every opportunity to work with agencies to improve the effectiveness of their NEPA implementation. I would like to cite a few examples:
- Working with CEQ, the Food and Drug Administration adopted regulations streamlining its NEPA process that will save taxpayers approximately $1 million a year and save the pharmaceutical industry an estimated $15.7 million a year.
- When the Advisory Council on Historic Preservation (ACHP) began rewriting its regulations, CEQ saw an opportunity to reduce redundancy between the requirements of the National Historic Preservation Act and NEPA. Under draft regulations, the ACHP would allow agencies to use their NEPA procedures for public involvement and documentation to satisfy requirements for consultation under the National Historic Preservation Act.
- When Governor Geringer wrote me in June 1997 regarding state and local government cooperation in a federal review of winter use activities in Yellowstone National Park, I asked my staff to work with the National Park Service (NPS) to reconsider its decision not to recognize the state as a cooperating agency. As a result, both the state and Park County, Wyoming, were granted cooperating agency status in the Yellowstone environmental impact statement.
- In New Mexico, CEQ worked with the Bureau of Land Management (BLM) to involve the state and local governments to an unprecedented degree in the preparation of a rangeland programmatic environmental impact statement. This study will form the basis for decision making on rangeland management in New Mexico.
- Over the last eight months, CEQ worked with Senators Chafee, Graham and Wyden to craft an amendment to the Intermodal Surface Transportation Efficiency Act to improve environmental review of transportation projects. The amendment, passed this month by the Senate, requires agencies to integrate environmental review into transportation projects at the earliest possible stage, reducing costly delays and giving the public a stronger voice in transportation planning.
NEPA Effectiveness Study
In May 1994, CEQ undertook a thorough, candid assessment of NEPA's implementation over the previous quarter-century. The National Environmental Policy Act: A Study of its Effectiveness After Twenty-five Years, published in January 1997, reflects the analysis and opinions of some of the people who know NEPA best and some who are affected by it most.
The "NEPA Effectiveness Study," as it came to be called, found five factors critical to successful NEPA implementation: 1) strategic planning; 2) public information and input; 3) interagency coordination, particularly how well and how early agencies share information and integrate planning responsibilities with other agencies; 4) interdisciplinary and place-based approaches that focus the knowledge and values from a variety of sources on a specific place; 5) and science-based and flexible environmental management approaches once projects are approved.
The study also identified shortcomings in NEPA's implementation. Some participants said that implementation often focused on the narrow goal of producing legally sufficient environmental documents, that the process is lengthy and costly, and that agencies sometimes make decisions before hearing from affected citizens -- even if a pro forma "public hearing" is held. Other participants noted that NEPA documents are often long and too technical, and that more NEPA training is needed.
Initial Reinvention Efforts
Following publication of the "Effectiveness" study, CEQ officially launched its focused NEPA Reinvention Project. CEQ identified key personnel to coordinate the project and to engage federal agencies in NEPA improvements. Three phases were planned: the first focusing on specific agencies and issues; the second drawing on those early experiences and applying the lessons to all agencies; and the third focusing on development of incentives for agencies to integrate economic, social and environmental factors into decision making.
The initial focus was planning and decision making related to federal management of oil and gas resources, grazing, and timber uses on public lands. These topics present especially difficult applications of NEPA procedures and are often the subject of controversy and litigation. An Interagency Team lead by CEQ was formed to address NEPA implementation in these three sectors.
The work of the NEPA Interagency Team highlights the importance of using NEPA as a decision making tool so all relevant factors are considered up front. Furthermore, the Team's accomplishments affirmed the importance of sound and participatory natural resource management in the preservation of our history, culture, and environment. Actions to improve NEPA implementation were begun by the NEPA Interagency Reinvention Team. Several are listed below.
- Common Landscape-Level Planning: As a pilot project, land management agencies (federal, state, local, and/or tribal) were to identify jointly a land use plan of action for federal lands on a common landscape area. Such planning would involve jointly-developed information and shared analyses in determining appropriate management strategies for adoption by specific agencies. The pilot would serve as a model for consideration by federal agencies.
- Decision Tools: To improve decision making in the management of natural resources, several agencies had begun to develop guidelines and handbooks for managers and technical staff. The Forest Service (USFS) did in fact develop a Decision Protocol, which describes a system for determining the quality and source of required information, the timing of key decisions in project proposals, implementation steps, and monitoring. Pilot tests of the Protocol within each Forest Service Region are reducing information-gathering costs by as much as 40 percent.
- Plain English Initiative: Clear, concise communication is crucial for effective public participation in the NEPA process. A document which is easy to understand develops trust, meaningful participation, and a commitment to finding common ground. Results of the project, lead by participants from the National Performance Review (NPR), USFS, BLM, and FWS, will be available through the Internet at the NEPANET web site.
- Early Coordination With Regulators: Early coordination on EISs and proposals which may have significant impact can avoid costly delays. When a lead federal agency anticipates its decision may have a significant impact on the environment, EPA, FWS, NMFS and COE will be notified and requested to participate in the pre-scoping process. Early coordination will assist agencies in environmental analyses and ensure that relevant environmental concerns are identified and addressed in a timely manner.
- Electronic Publishing and Data Management: To improve NEPA, the potential to exchange an increasingly larger portion of NEPA-related information on the Internet was being explored.
- Alternative Dispute Resolution (ADR): Three petroleum companies and the BLM are using ADR techniques and a third-party expert to facilitate EIS work with the Ferron Gas Project in Utah. The proposed action includes approximately 375 new coal bed methane wells on about 96,000 acres. The ADR identifies issues for resolution early in the NEPA process. It was intended that through the NEPA Reinvention Project, the techniques and lessons learned from this pilot would be applied to other projects in the future. The companies involved have found that this ADR is avoiding conflict and saving time.
- Resource Advisory Councils and State and Local Agencies: Early coordination among the federal agencies often improves the NEPA process. This is especially true when agencies are preparing their initial proposals or reviewing comments from Resource Advisory Councils. The USFS, Natural Resources Conservation Service (NRCS) and other agencies, as appropriate, were to participate with BLM's Resource Advisory Councils to provide input and coordination with BLM. Incorporating expertise and information from state and local agencies in the analysis process will foster decisions that better meet the needs of the community and minimize adverse environmental impacts. BLM in New Mexico is working closely with the State and counties to facilitate their participation in an assessment of public rangeland health issues. The parties have signed formal agreements supporting a cooperative approach. The experiences gained could serve as a model to improve future decision making.
- Interagency Collaboration in Managing Timber: The appropriate management of timber within and among several adjacent land owners requires comprehensive consideration of specific social, economic, and environmental conditions. Often, these considerations are aided by collaboration among local, state, federal, and tribal governments. In addition, private landowners and users of public lands often provide important information for the development of specific actions to address forest health, project design, environmental mitigation, and other timber-related topics. Early collaboration provides a means to reach consensus that a specific timber-related action is needed at the location and time proposed. Several cooperative models and collaborative processes among agencies are underway within the USFS and BLM. Communication of successful models and evaluation and critique of less successful models could provide valuable information.
- Timber Harvest Monitoring: BLM, USFS, EPA, FWS and NMFS were developing guidance for multi-year, large-scale effectiveness and validation monitoring of timber sales and other vegetation management projects which include associated road construction or reconstruction. Procedures were to identify required monitoring and record keeping in NEPA analyses. Research scientists and other specialists were to assist in developing monitoring strategies to ensure that results are considered in future planning.
Planned Next Steps in NEPA Reinvention
Our initial efforts were well received by a wide range of parties, including Western governors, the Western States Foundation, many Congressmen and Senators, and several state universities we have consulted. All encouraged us to take the effort to the next level and launch a comprehensive and sustained reinvention effort.
Building on the lessons learned in the initial phase, the Interagency Team formed Task Teams to address training, measurement of performance, integration of NEPA in strategic planning, and information exchange through the Internet. The Task Teams had begun to develop specific recommendations to improve the implementation of NEPA among all federal agencies.
Increasing the project's scope, however, required an expansion of resources. Because the limited resources available to the agency in Fiscal Year 1997 were needed for our ongoing NEPA policy development, coordination and dispute resolution responsibilities, and because the amount of staff approved for the organization was already less than half of the level that existed at the end of the Bush Administration, cutting into existing staff resources to support the Reinvention Project was not a realistic option.
As a result, the Administration proposed a Fiscal Year 1998 budget increase of $584,000 to be used principally for the Reinvention Project. The purpose of the request, and the consequence of not providing it, were clearly communicated to Appropriations subcommittees and to all relevant parties. Nonetheless, the appropriations increase we ultimately received ($64,000) fell far short of our request and was clearly insufficient to support this effort. A further legislative restriction, added at the last moment, preventing CEQ from using agency detailees dealt an additional blow to the project. Accordingly, in the face of this lack of support from Congress, CEQ had no choice but to suspend the NEPA Reinvention Projection at the end of Fiscal Year 1997.
Status of Reinvention
I remain committed to improving the implementation of NEPA generally and to the objectives of the NEPA Reinvention Project in particular. As a result, CEQ is again requesting in its Fiscal Year 1999 budget that Congress provide the modest but necessary resources to support a more fundamental approach to reinventing NEPA. I would welcome an opportunity to explore a revival of the NEPA Reinvention Project with interested Members of Congress.
In the interim, federal agencies, we hope, will continue exploring ways to improve NEPA implementation on their own initiative in a comprehensive fashion, while CEQ continues to insist on improved NEPA application on an issue-by-issue basis.
We are proud of each instance in which we have cut red tape, reduced the time it takes to comply with environmental processes, brought local interests to the table for a more effective role in the decision making process and helped federal agencies resolve conflicts among themselves. We look forward to the opportunity to continue our reinvention of NEPA so that CEQ, and the entire federal family, can better serve the environment, ensure the economic and social integrity of our communities and engage the American public.
In conclusion, I would like to quote from an article by Lynton Caldwell in the current issue of The Harvard Environmental Law Review. In his thoughtful analysis of NEPA's achievements to date, and its power to shape environmental policy in the future, Dr. Caldwell reminds us just how fundamental this statute is to our nation's well-being. "NEPA," he writes, "may be regarded, in effect, as a constitution for the environment -- principles to guide the nation toward an enhanced quality of life and an enduring environmental future."
Indeed, NEPA sets out both our highest ideals and a blueprint for meeting them. It is a privilege to join others who have worked so hard over the years to fulfill the mission declared by Congress nearly 30 years ago. And it is my sincere hope that those who follow will find a NEPA invigorated and strengthened by our efforts.
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