White House Seeks More Transparent Environmental Reviews

3/9/2010

The Obama administration has proposed new guidance intended to increase transparency and public involvement in the implementation of one of the nation's oldest and most important environmental laws. The 40-year-old National Environmental Policy Act (NEPA) creates a process where federal agencies must review the environmental impacts of their actions and evaluate alternatives while working to include public participation in the process.

Recognizing the 40th anniversary of NEPA, the Council on Environmental Quality (CEQ) – the White House office in charge of monitoring federal NEPA compliance – issued draft guidance in February to all federal departments and agencies. The guidance is designed to ensure transparency and openness as agencies evaluate ways to mitigate the environmental impact of their proposed actions. The new guidance is available for public comment.

For many federal activities, the NEPA process provides for public participation in identifying potential alternative actions and commenting on environmental impacts. Under certain circumstances, agencies may proceed with their actions if they commit to steps that "minimize, rectify, reduce, or compensate" the adverse impacts resulting from their actions. However, in the past, these mitigation efforts have often lacked monitoring and frequently failed.

The CEQ draft guidance sets three goals for improving transparency: 1) consideration of mitigation efforts throughout the NEPA process and clear documentation of the mitigation commitments; 2) creation of monitoring plans for the mitigation actions; and 3) greater public participation through "proactive disclosure" of NEPA records.

Although these actions do not create any new regulations and the language still grants agencies much discretion, they regardless represent the first major enhancements of the NEPA process in years. As the office in charge of NEPA, CEQ wields considerable sway in determining how other agencies comply with the law and regulations. Increasing transparency and chipping away at the culture of government secrecy that has flourished over the years requires, among other actions, the reaffirmation of existing openness policies and commitment from the top to enforce these measures.

The draft guidance makes several valuable recommendations for transparency. It recognizes that public engagement is a key feature of NEPA and "should be fully integrated into agencies' mitigation and monitoring processes." While recognizing the importance of the Freedom of Information Act (FOIA), the CEQ calls on agencies to make NEPA reports, documents, and responses to public questions "readily available to the public through online or print media, as opposed to being limited to [FOIA] requests made directly to the agency." The CEQ stresses the need to document important aspects of the NEPA process, such as goals, timelines, and funding, which improves accountability. Moreover, the draft guidance endorses the fundament that citizens have vital, substantive contributions to make to government decisions: "In addition to advancing accountability and transparency, public interest and input may also provide insight or perspective for improving any mitigation activities as well as providing actual monitoring assistance."

The new draft guidance from CEQ also includes a case study from the Department of the Army that showcases robust public involvement and monitoring in the NEPA process. By providing this example, CEQ shows other agencies that the goals they have set for NEPA can be achieved and highlights one way to do so.

Ensuring transparency is especially crucial in the NEPA process. NEPA places agencies in charge of preparing an impact assessment that could challenge their own proposed actions, creating strong potential for conflicts of interest that only transparency can counter. By forcing agencies into a transparent assessment process, the law empowers the public and the courts to demand sufficient environmental protections.

Other New Draft Guidance

In addition to the draft guidance on mitigation measures, CEQ also released draft guidance on how agencies should consider the impacts of climate change in their environmental assessments and on the use of "categorical exclusions." Categorical exclusions cover types of federal actions that are generally considered to "not individually or cumulatively have a significant effect on the human environment," and therefore, agencies need not assess their environmental impacts.

According to CEQ, "An inappropriate reliance on categorical exclusions may thwart the purposes of NEPA, compromising the quality and transparency of agency decisionmaking as well as the opportunity for meaningful public participation and review." Categorical exclusions are the most frequently employed method of complying with NEPA.

The draft guidance on categorical exclusions emphasizes the requirement to involve the public in the process, and although it creates no new requirements, the guidance encourages agencies to go beyond the customary Federal Register public-notice-and-comment practice. The CEQ suggests agencies use "public involvement techniques such as focus groups, e-mail exchanges, conference calls, and web-based forums [to] stimulate public involvement." Agency websites should be used to communicate proposed changes to the agency's NEPA process because, according to CEQ, "Not only is this another method for involving the public, an agency website can serve as the centralized location for informing the public about agency NEPA implementing procedures and their use, and provide access to updates and supporting information."

Granddaddy of Environmental Laws

Before the law was signed by President Richard Nixon in 1970, the Senate passed NEPA on a unanimous vote, and the House of Representatives passed the bill by a wide and bipartisan margin of 372-15. The Clinton White House examined the effectiveness of NEPA in 1997 and concluded that:

Partly as a result of NEPA, public knowledge of and sophistication on environmental issues have significantly increased over the last 25 years. So too have public demands for effective and timely involvement in the agency decision-making processes. The success of a NEPA process heavily depends on whether an agency has systematically reached out to those who will be most affected by a proposal, gathered information and ideas from them, and responded to the input by modifying or adding alternatives, throughout the entire course of a planning process.

During the administration of George W. Bush, NEPA came under increasing attack by the White House, Congress, and even the courts. The current administration has presented a very different take on the law.

In a New Year's Eve proclamation recognizing the 40th anniversary of NEPA's enactment, President Obama affirmed that, "my Administration will recognize NEPA's enactment by recommitting to environmental quality through open, accountable, and responsible decision making that involves the American public." The president also called upon executive branch agencies "to promote public involvement and transparency in their implementation of the National Environmental Policy Act. I also encourage every American to learn more about the National Environmental Policy Act and how we can all contribute to protecting and enhancing our environment."

The People Speak

As part of the Obama administration's Open Government Directive, agencies are accepting public comments through website forums dedicated to generating ideas for increasing government openness. A number of individuals have suggested ways to improve the NEPA process, including calls to address the monitoring of mitigation efforts. Other ideas from the public include using new technology to improve public participation and making the scientific data mappable.

The public may comment on the draft guidance until May 24.