The Bush administration has expanded exclusions of the National Environmental Policy Act (NEPA). The administration will allow private industry to engage in selected land management projects without first assessing the potential impact on the environment. Furthermore, by excluding these activities, the administration has stripped the public of its opportunity to provide input into potentially damaging projects.

In 1970, NEPA was enacted to ensure environmental responsibility is considered in the actions of the federal government. NEPA is a cross-cutting statute that applies to the actions of all federal agencies.

During the development of agency rules, agencies must study the potential environmental impact of the action. If agencies determine in preliminary studies a proposed action would lead to a significant impact, the agency prepares a more detailed assessment.

However, under NEPA, federal agencies can issue Categorical Exclusions (CEs) for small-scale activities. The CEs exempt the actions from environmental study. This limits the administrative burden for activities that may have minimal or no environmental impact, such as maintenance activities or developing rules that establish administrative activities. According to the Code of Federal Regulations, "Categorical exclusion means a category of actions which do not individually or cumulatively have a significant effect on the human environment" (40 CFR 1508.4).

NEPA also includes specific public participation mechanisms. The public may suggest what environmental factors should be considered in the study of environmental impact, and agencies are required to consider those comments. When an environmental assessment is completed, it is placed in a docket for the public to scrutinize and provide further input.

On Aug. 14, the Bureau of Land Management (BLM), a division of the Department of the Interior, published new CEs. BLM proposed the new exclusions in January 2006 and opened the proposal for public comment.

Two of the exclusions BLM finalized raised the ire of environmentalists during the public comment period. One exclusion will allow companies to use seismic technology to search for oil, gas or geothermal resources without consideration of environmental effects, so long as new road construction is not necessary. A coalition of environmental groups including the Natural Resources Defense Council submitted comments stating, "Seismic testing has direct and indirect effects, as well as cumulative impacts, to a host of natural and historic resources."

The CE could allow a controversial type of truck to travel through natural lands. Exploration using seismic technology often involves trucks which use heavy weights to strike the ground and measure resulting signals. The vehicles, known as thumper trucks, can leave tire tracks over one foot deep and can cause long-term damage to soil structure.

Exempting the projects from NEPA requirements would prevent more environmentally friendly alternatives from being considered. Because the new CE does not require an environmental assessment, companies will be solely responsible for the nature of the project. "As we have found time and time again, industry proposed seismic projects have an obvious bias towards permitting seismic activities in the most cost-effective manner, and not necessarily the most environmentally sensitive," the environmental groups stated in comments.

Another exclusion will allow BLM to issue grazing permits for rangelands without considering environmental impacts. Another group of environmentalists including NRDC and Earthjustice found legal fault with this exclusion. In Natural Resources Defense Council, Inc. v. Morton and Idaho Watersheds Project v. Hahn, federal courts found the issuance of grazing permits to significantly affect the human environment, according to the groups.

In both cases, the application of CEs will prevent environmental impact from being known prior to a project being undertaken. Additionally, the public will be left out of the decision-making process. The CEs exempt the activities from the public participation provisions of NEPA and will prevent the public from commenting on proposed projects.

BLM published the CEs just days after its new director took office. James L. Caswell was confirmed by unanimous consent in the Senate on Aug. 3.

This is not the first time the Bush administration has met with opposition for CEs of NEPA. In 2003, the U.S. Department of Agriculture's Forest Service issued CEs that allow large-scale logging projects to proceed without the completion of an environmental assessment. Critics charged the administration with pursuing the CEs at the behest of industry. The CEs were contested in court but were upheld.

Those CEs were the subject of a House Natural Resources Committee subcommittee hearing on June 28. In the hearing, a Forest Service official defended the use of the CEs. A witness from the Government Accountability Office testified about the extent to which the CEs have been used. Since taking effect, 72 percent of vegetation management plans impacting 2.9 million acres have been approved using the CEs, according to testimony.