NEPA changes will hinder decision making – May 2022
Many of us saw the recent announcement from the Biden Administration about the Council on Environmental Quality’s (CEQ) recent roll back of the previous administration’s revisions to our NEPA (National Environmental Policy Act) process. Both the American Farm Bureau Federation and Wyoming Farm Bureau Federation submitted comments on CEQ’s proposal to change the 2020 rules. Frankly I wasn’t too optimistic that our comments would have been adopted since many of those groups who supported this Administration were firmly on the side to reinstate the rules back to the 1978 version.
Those of us in the Rural West have seen firsthand what the NEPA process has become. Wyoming Farm Bureau Federation comments pointed out that ranchers and farmers cannot expend the time necessary to review the voluminous documents that are the result of agencies trying to “litigation proof” the environmental documents.
A trip to our library and some quick math illustrates the problem. For instance, the Big Horn Basin Resource Management Plan and Draft Environmental Impact Statement (EIS) in 2011 was a 1,500 plus page document. The Bridger-Teton National Forest Final EIS was 1,200 plus pages. The size of the document seems to indicate the agency’s prediction on litigation. The Yellowstone Park Bison Management Plan and Final EIS in 2000 had 2,149 pages.
Anytime you ask an agency to develop a document of the size mentioned above, that means the agency must dedicate huge amounts of hours to that task. Even with the increased staff levels evident in our local BLM and Forest Service offices, these undertakings will consume several years just to bring the document to the draft stage.
Meanwhile, those in the private sector who seek to utilize federal lands for their living are left hanging in limbo while the agency works to complete their herculean task. NEPA requires these documents be developed prior to a federal action. I almost said, “major federal action,” but we all know that isn’t the case. Courts have driven the level necessary for an EIS to a level that is far from major. The Medicine Wheel National Historic Landmark Draft EIS developed in 1991 was a measly 94 pages, but undoubtedly would need to have five to ten times that size of pages if the concern over a lawsuit would have been in the mix.
Speaking of lawsuits, the likelihood of an EIS on a controversial action being litigated is greater than a nudist getting bitten by mosquitoes in a swamp. This is then guaranteed to add more time to the process.
The time factor has become an effective tool for the NIMBY (not in my backyard) crowd because most businesses have a time frame. The time factor was a major contributor to the timber industries decline in Wyoming. Timber sales were challenged and challenged and challenged again, which lead to enough of a time delay that sawmills soon closed as their supply of trees dried up.
This NEPA delay was exactly what anti-grazing groups were hoping would happen when federal grazing permit renewals were coming due and the necessary NEPA analysis was years behind. Absent action by Congress livestock operators in the West would have gone the way of the sawmills while waiting for the agencies to comply with NEPA requirements.
Unfortunately, efforts to try and bring NEPA back to what Congress originally intended the statute to be, i.e., an analysis of potential environmental consequences of an action, were turned back by this Administration at the behest of their environmental supporters before the idea could have even been given a try.
Under the recent action, resources and time will continue to be spent by agencies trying to avoid costly litigation. Those who benefit by delaying the NEPA process or getting money back when they litigate see this as too big of a tool to not fight to keep it around. Better decision making was a fatality of the process long ago and it doesn’t look like it will return anytime soon.
By Ken Hamilton, Wyoming Farm Bureau Federation Executive Vice President