November 23rd, 2005

The National Environmental Policy Act (NEPA): A Precious Process

OVERVIEW:

NEPA is a procedural Act, not a substantive one. This means that NEPA requires a particular process, not a particular outcome. In reality, requiring a certain amount of process results in a decision by the agency that is theoretically more “environmentally sound.” NEPA is a bedrock environemtal law because it requires a process that is black and white, to which you can hold government agencies accountable.

NEPA requires federal agencies to assess the impact that their actions will have on the environment. Projects include dams, timber sales, and highways…anything that involves a federal agency or federal permission. For example, if Joe Golfcoursebuilder wants to build a multi-million dollar gold course that is in a marsh and would require him to fill wetlands with dirt, federal permission is required and Joe must go through NEPA.) NEPA also requires a public participation process, which is designed to “inform” the federal agencies. NEPA was signed into law in 1970 by President Nixon, our country’s most environmental President (believe it or not!).

THE NEPA PROCESS:

The Forest Service (each national forest) prepares a schedule of proposed projects (SOPA) that lists projects the agency wants to do. In Mount Hood the publication is known as Sprouts and is sent out quarterly.

The USFS sends out a “scoping” letter. The letter says, “This is what we want to do, what do you think?” It is a very general letter, usually only a page or two. It goes out to the USFS’s mailing list. You can get on the list by simply calling them up and asking to be placed on it. After you get the letter, you can submit written or oral comments on the project. You must comment on the scoping letter if you want to be able to appeal the project at the end. In addition, the only issues you can sue on if the appeal doesn’t go through are the ones you brought up through the entire process.

After ruminating on the responses they get from the scoping project, the agency develops the project further. Generally the USFS prepares an EA at this time. The purpose of an EA is to determine whether an EIS is necessary. The answer is almost always “no.” The regulations state that an EIS is only necessary when “the quality of the human environment will be significantly affected by the proposed project.”

The agency releases the EA or EIS for public comment. With an EA, you have 30 days to comment on the document and the analysis; you have 45 days with an EIS. There are a variety of things that you should include in your comments.

After you turn in your comments, the agency thinks about them for as long as they want. Usually the agency decides to do the project anyway, and for an EA, issues a decision notice and finding of no significant impact (DN/FONSI) – remember, if there is a finding of significance, then the agency must prepare an EIS. If the document was an EIS, then the agency issues a record of decision (ROD).

At that point, you have 45 days to administratively appeal the DN/FONSI, and up to 90 days to appeal a ROD. The appeal regulations (part of the National Forest Management Act) also allow you an automatic “stay pending appeal,” which means that the agency will hold off on implementing the project until after the appeal process has been completed.

An administrative appeal has a variety of things in it. A good approach is to throw everything at the Forest Service and see what sticks. This generally means a long appeal with lots of attachments.

After the appeal, the agency is required to offer to meet with you to resolve your appeal in what is called an appeal disposition meeting. Translation: what can we do to get you to go away?
After the meeting, the Forest Service sends your appeal to the Regional Forester, who issues a final disposition on the appeal. Either the Regional Forester will drop the project or will approve it. At this point, you are left with the huge public outcry approach (like Eagle in Oregon), litigation or direct actions (Eagle.

WHAT YOU CAN DO:

Some people really like reading EAs and EISs, but they are not for everyone. You can also help people get the on-the-ground information that we need to make our comments, appeals, and litigation stronger. Specific things that you can do to help:

Go on hikes. Take pictures of timber sales. What we really need is high-quality pictures of old growth, features in the sale units (mushrooms, plants, animals, etc.).

When you go on hikes, go ground-truthing. This means that you look around you and pay attention to what is out there. You do not need to be a trained botanist, ecologist, biologist, or hydrologist; just use common sense: are there lots of roads around and through the units? Are there streams or wetlands in the units? Signs of deer and elk, or other animals (especially large canids or carnivores!)? Unique plants? Stuff like this is stuff that anyone can take notes on and send to those who really need this information.

Send in comments. If you have time to read an EA and comment on it, then great. It is a very satisfying experience to send the Forest Service into complete disarray with your observations. If not, we have template comments that you can use and send in. Plagiarize the comments of others: imitation is the sincerest form of flattery. If you have the scientific background, then criticize the agency’s analysis. They love that!

Be patient and sure of yourself. Learning this stuff can be daunting: it’s a lot of information, and it’s the government, who is always supposed to be right. However, it’s rarely true. These are OUR public lands, and WE have the RIGHT to determine how they are managed. It doesn’t take long to figure out that there is a scam being perpetuated on the American people, and it is infuriating when you realize this.

When you read this stuff, you may think that you are “wrong,” or that you are just misunderstanding the information you are reading. If you are confused, it is them, not you. If it smells fishy, it is. Don’t doubt your instincts that you are being mislead or aren’t being told the whole truth.

Just stick with it, and don’t be afraid to make mistakes. Nothing bad will happen to you if you allege that something is going on if you think it is, and then it turns out that you are in fact wrong. If something seems incorrect or morally wrong, call it out. Don’t make up stuff, but call out inconsistencies or things you don’t want to see in your national forests (like old growth logging). Be rational – this will get you much further than being pissed off. You can be pissed off, just be rational about it.