Citizen Health & Safety
Portman Proposal Limits Environmental Reviews and Public Input on Proposed Development Projects
by Katie Weatherford, 3/25/2014
Sen. Rob Portman (R-OH) is pushing ahead with his campaign against public safeguards, using a subcommittee hearing on March 11 that was designed to discuss ways to improve the effectiveness of our regulatory system to promote yet another anti-regulatory bill, the Federal Permitting Improvement Act of 2013. The bill would require faster environmental impact assessments under the National Environmental Policy Act (NEPA) for proposed major infrastructure projects and limit public input in, and oversight of, federal decision making.
According to the Coalition for Sensible Safeguards, co-chaired by the Center for Effective Government, "NEPA's guarantees of public input and government transparency are crucial to protecting federal lands, local communities, and American landowners from short-sighted and uninformed project development. This bill would gut crucial environmental and public health protections."
The NEPA Process
On Jan. 1, 1970, President Richard Nixon signed NEPA, the first in a series of major federal environmental laws. First, the law ensures that agencies consider the environmental impacts of proposed federal actions before that action is taken. Second, it requires agencies to initiate a dialogue with the public about proposed federal actions.
To accomplish the first goal, the statute requires federal agencies to prepare an environmental impact statement (EIS) for "proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." NEPA also established the Council on Environmental Quality (CEQ) within the White House to oversee the implementation of the law.
NEPA encourages public participation by requiring agencies to: a) publish a notice in the Federal Register about a proposed federal action, b) make the environmental impact assessment available for review, and c) allow participation in upcoming meetings or through the submission of written comments on the action or its environmental impacts. NEPA also allows interested parties to file suit against an agency for failing to adequately respond to their comments.
However, NEPA includes no obligation for agencies to take steps to mitigate the environmental impacts of a federal action; a project may proceed even if it is determined to have significant harmful environmental impacts. But later statutes and executive orders require agencies to address potential risks to public health and the environment.
Key Concerns with the Portman Proposal
NEPA was enacted with bipartisan support and has served a noble purpose for over 40 years. Yet Sen. Portman's latest anti-regulatory proposal would gut key provisions of the law. The bill would undermine the fundamental goals of NEPA by expediting the permitting of large-scale federal infrastructure projects and stripping the public of its opportunity to participate in the decision making process. Key components of the bill include:
- Creates a New Government Entity with Complete Power over Development Decisions. The bill would establish a new entity, called the Federal Permitting Improvement Council. Members of the council would include representatives from certain executive branch departments, and a Federal Chief Permitting Officer (FCPO) from within the White House Office of Management and Budget (OMB) who would chair the council. This new "permitting czar," with advice from the Council, would set performance deadlines, with a maximum of six months for agencies to complete reviews and authorizations for even the most complex projects. Despite ongoing criticisms about the lack of transparency at OMB and charges of undue political and corporate influence in decision making, the new "permitting czar" would reside in the executive office known for its lack of accountability regardless of which party is in the White House. The czar would have substantial power over any major development projects that require a federal permit or regulatory approval from a federal agency and an initial investment of $25 million or more. In short, this council could “fast track” these major infrastructure projects, including any energy development project on federal land, even overriding the federal agency assigned to review the project.
- Speeds up the Environmental Review Process. Within 60 days of receiving a notice from a project sponsor about a proposed project, the lead agency would be required to develop a coordination plan. The agency’s plan would be required to follow the performance schedule deadlines established by the Council, with limited exceptions. The czar would review the plan, and if the agency deviated from the performance schedule, the czar could change the permitting timetable. If the agency failed to meet a deadline in its coordination plan, it would have to provide the czar with a written explanation for why it failed to meet the deadline, provide a proposed new deadline, and also provide monthly status reports on any agency action for the project. This provision is ironic since OMB’s review of agency standards and protections regularly fails to meet the 90-day deadline and does not provide written explanation of their requested changes to rules, though it is required to do so by executive order.
- Allows Project Sponsors to Request Exemption from NEPA. The bill would allow project sponsors (the entity seeking approval for a project) to submit a request for the federal agency reviewing the project to adopt documents prepared under state laws as the environmental assessment or impact statement for the project. Although the law allows the federal agency, in consultation with the Council on Environmental Quality, to reject those documents if the state’s law does not provide environmental protection and public participation requirements “substantially equivalent” to NEPA, federal agencies may feel pressured to adopt sub-par state documents where they have an insufficient amount of time or resources to conduct an exhaustive assessment of the state’s procedures.
- Limits Public Input on a Proposed Project. Under the proposal, the public is limited to 60 days for submitting comments on a draft environmental impact statement and 30 days for all other comment periods established during the environmental review process, rather than the 90-day comment period currently provided under NEPA. Moreover, impeding the public's ability to participate in the decision making process and speeding up the time agencies have to assess environmental impacts of proposed projects will likely result in public concerns being ignored.
- Increases Barriers for Members of the Public to Challenge Shoddy Reviews in Court. The bill would drastically shorten the statute of limitations for a member of the public to challenge an agency's assessment in court, lowering it from six years to a mere 150 days. If major environmental impacts of a project are not adequately assessed or public concerns are simply ignored, members of the public would have a very limited opportunity to challenge the agency in court. On top of this, the bill directs courts to consider economic and job impacts of a project in choosing whether to grant an injunction against the project moving forward.
If the Portman proposal is enacted, it would curtail the environmental assessment process and severely restrict the public's opportunity to participate in the decision making process for federal projects, attacking the very purpose for which NEPA was enacted.
Portman claims this bill is necessary because it often takes years to complete the review and approval process for many large infrastructure projects subject to NEPA. But, according to the Congressional Research Service (CRS), the primary causes of project delays are typically "local/state and project-specific factors, primarily local/state agency priorities, project funding levels, local opposition to a project, project complexity, or late changes in project scope." Further, CRS explains that the environmental review process may ultimately "save time and reduce overall project costs by identifying and avoiding problems in later stages of project development." What this bill is designed to do is undermine the NEPA process by giving more power and influence to "project sponsors" at the expense of citizens and regulatory agencies responsible for protecting the public interest.
For anyone who believes that government is supposed to serve the interests of the American people, this bill should be dead on arrival.