Testimony of Gale Norton
Attorney General of Colorado
Before the House Committee on Resources
Oversight Hearing on the National Environmental Policy Act
March 18, 1998
Introduction
I want to thank the committee for this opportunity to discuss issues relating to the National Environmental Policy Act. I think NEPA is a good piece of legislation that has lost its way during its implementation. With changes, however, it can accomplish what it was intended to accomplish, that is, having the state and federal governments work together to find and implement the proper balance between protecting the environment and achieving other societal goals.
I will focus today on the federalism issues of NEPA. I am familiar with both the state and federal perspectives on environmental and natural resources issues. During my seven years as Colorado Attorney General, I have been personally involved in working to ensure that we have a thorough clean-up of hazardous and radioactive wastes at Rocky Flats and the Rocky Mountain Arsenal, and I was selected by my fellow state Attorneys General as chair of the National Association of Attorneys General Environment Committee. During the Reagan Administration, I served in the Department of the Interior as Associate Solicitor for Conservation and Wildlife. In addition, I am currently the national chair of a new organization, the Coalition of Republican Environmental Advocates.
History of NEPA
The National Environmental Policy Act, 42 U.S.C. sections 4321 to 4370a, was enacted by Congress in 1969 and signed into law by President Richard Nixon on January 1, 1970. The Act reflected a widespread public desire to address concerns over the worsening state of the environment. The "grandmother" of all environmental legislation, the Act was intended to set out the policy of the federal government regulating and taking action in the environmental area.
NEPA inaugurated a decade of massive environmental legislation, which included the Clean Air Act, the Clean Water Act, the Endangered Species Act, the Resource Conservation and Recovery Act, and the Comprehensive Environmental Response, Compensation and Liability Act. During that decade, numerous federal agencies and entities were created, or given authority, to implement environmental regulation and policy, including the Environmental Protection Agency, the Council on Environmental Quality, the Department of the Interior, the Forest Service, and the Corps of Engineers.
The purpose of NEPA was to set out an environmental policy that would be implemented by the federal government in cooperation with the states and local governments. Under NEPA, implementation of that policy occurs through reports done by the CEQ on the environment and environmental protection and through a process by which federal agencies, in cooperation with state and local governments, analyze the impacts of their actions on the environment and other societal values.
Today, environmental impact statements and environmental assessments are a routine part of the planning process for any process undertaken by the federal government or that requires a federal approval. The EPA Office of Federal Activities recently described the statistical picture of NEPA analysis. Of the final EISs filed in 1996, the longest had 1638 pages of text, while the average was 572 pages, including 204 pages of NEPA analysis. Although an average of only 508 EISs were prepared each year between 1990 and 1995, the Council on Environmental Quality estimated that about 50,000 EAs were being prepared annually.
The environmental policy to be implemented by the federal government was set out in section 101 of NEPA. Section 101 reads in relevant part as follows:
The Congress .... declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations.
Several principles are obvious from this declaration: (1) Congress intended for state, local and federal governments to form a partnership to protect the environment; (2) Congress intended that the Act result in interagency cooperation in making decisions regarding the environmental impacts of federal actions; and, most important, (3) Congress intended that national environmental policy consist of a reasonable balance between environmental protection and other societal goals. Somewhere along the line, these principles have eroded, both in the implementation of NEPA and in the implementation of environmental laws in general.
State-Federal Partnerships
The original goal of NEPA and of many other environmental statutes was to forge a federal-state partnership in protecting the environment. In NEPA, state and local governments were to have an essential part in determining the environmental and societal impacts of federal actions. This state-federal partnership has worked well in some instances. The US Department of Transportation has allowed the Colorado Department of Transportation to play a significant, or even primary, role in preparation of some environmental impact statements.
On the other hand, states have often found themselves at odds with the federal government when the issue involves public lands -- an issue that is critically important to western states. This is not what Congress intended when it began the "environmental decade" and it must be changed for the sake of the environment. To remedy this problem, Senator Craig Thomas recently introduced S. 1176, the State and Local Government Participation Act, which would amend NEPA to specifically require federal agencies to cooperate with states and counties.
Innovative environmental policies, just like other innovative policies, come about when the states act as "laboratories of democracy." For example, in Colorado, we have enacted a voluntary self-audit statute. That statute encourages more clean-up and more prevention of environmental harm, at no additional cost to the taxpayer. Rather than congratulating the State for its innovative approach to environmental policy, the federal government, and EPA in particular, has waged a war against the law because it conflicts with agency policy. (I testified March 17th before the House Commerce Committee about environmental self-audit laws, and would be happy to provide this committee with more information upon request.)
In addition to innovative policies, the states are important in the federal-state environmental partnership because there is no such thing as a one-size-fits-all government. The states, where government is closer to the people, are the proper entities to implement environmental laws and policies.
Further, after NEPA declared national environmental policy, Congress intended and wrote the concept of "state primacy" into all subsequent major federal environmental statutes. The Clean Water Act, for example, states a policy "to recognize, preserve and protect the primary responsibilities and rights of States to prevent, reduce and eliminate pollution." 33 U.S.C. section 1251(b). The federal agencies, such as EPA, often pay lip service to state primacy, but in practice, the agencies have mastered the art of "mission creep," using their budgets and authorities to micromanage the 50 states. That approach is not just bad policy: it defies the will of Congress as expressed in NEPA and the subsequent environmental statues.
To return to the original intent of Congress in NEPA and so many other environmental statutes, I recommend that Congress start the devolution of authority in the environmental area back to the States by amending NEPA. Specifically, Congress should require that agencies consult at an early stage with state and local governments in developing environmental impact statements. It should be clear in NEPA that an environmental impact statement is not adequate if it does not address fully state and local concerns.
Interagency Cooperation
A second important principle contained in NEPA is cooperation between federal agencies in determining and implementing federal policy. In the almost 30 years since NEPA was signed into law, there has been a massive proliferation of federal environmental requirements, as contained in statutes and regulations and agency policies. Regulated sources are subject to numerous, often conflicting, agency approvals processes.
I would recommend that Congress consider amending NEPA to better serve as a vehicle for early identification of federal requirements for projects and for consolidated approvals of those projects. Specifically, NEPA should be amended to require that the primary federal agency taking an action must identify the other federal agencies that must be involved in, or approve a project. There should then be a process set out for all the agencies to work together in an expeditious manner to either approve or disapprove the project.
Balancing Societal Needs
The most significant challenge set out in NEPA is that government must strive to find the proper balance between environmental protection and other societal needs. We certainly need a clean and healthy environment. Americans applaud the advancements in clean air and water made since NEPA and other key environmental statutes went into effect. We also need a productive society that fulfills the social and economic needs of present and future generations. Congress in NEPA recognized that the state, local and federal governments must attempt to balance all of these needs in implementing environmental policy.
Amending NEPA alone will not bring a total balance to environmental policies, but it is a start. I recommend two changes in this area. First, we must ensure that all societal needs and impacts are identified in the NEPA information-gathering process. If the Forest Service is going to deny an easement for an existing water project, we need to understand not only the environmental impacts, but also the impacts on the way of life of local communities and on their economic productivity.
Second, we must use the information collected and analysis done in the NEPA process to identify potential conflicts and initiate a process to resolve them. For example, the NEPA process may identify a potential conflict between the local community and a federal agency proposing a project. Amendments to NEPA might require that some conflict resolution mechanism be initiated at that point to resolve the conflict.
In short, collecting information and analyzing societal impacts is desirable, but only if the information is used to make well-reasoned and balanced decisions about federal actions.
Conclusion
In conclusion, I would suggest that the policy set out in NEPA thirty years ago is a good one -- protect the environment while balancing that protection with other societal needs and goals. Thirty years later, we have sometimes strayed from that policy. The best thing we can do for the citizens and the environment is to return to that original vision.
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