July 30, 2018
Edward A. Boling
Associate Director for the National Environmental Policy Act
Council on Environmental Quality
730 Jackson Place NW
Washington, DC 20503
Via Federal e-Rulemaking portal at: https://www.regulations.gov.
Dear Associate Director Boling,
We are writing on behalf of the more than 1,600 members of the Coalition to Protect America’s National Parks (Coalition) to submit comments in response to the Advanced Notice of Proposed Rulemaking (ANPR) for an “Update to the Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act” (docket: CEQ–2018–0001) published in the Federal Register on June 20, 2018 (83 Fed Reg 28591 et seq.).
The Coalition collectively represents more than 30,000 years of national park service leadership, management and operations experience. We study, educate, and advocate for decisions and policies that will protect America’s natural and cultural heritage by preserving units of the National Park System, and their associated public lands. Our membership includes current, former and retired National Park Service (NPS) leaders, staff and formally appointed volunteers who’ve worked in or managed these NPS units and have gained extensive experience in implementing regulations associated the National Environmental Policy Act (NEPA) for federal actions advanced by the NPS, by other federal agencies, and by private sector proponents for projects on federal land.
At the onset, we would like to express our opposition to making major revisions to the CEQ regulations. We believe the current regulations have proven themselves effective and efficient over an extensive time period, and this success has led to the development of a stable set of federal agency implementing policies, that now serve the American public and agency decision-makers very well. Should a major revision to the CEQ regulations occur, it would cause decades of disruption, as agencies would need to take on the long process of revising their related NEPA implementing procedures and NEPA guidance handbooks. Furthermore, in the case of the Department of Interior and consequently, the National Park Service, a major revision of the CEQ regulations would undoubtedly further delay numerous NEPA processes (and their associated actions) while agencies revise their NEPA policies and guidance documents. In short, we feel the current policies are not broken, so there is no need to fix or revise them.
Notwithstanding our opposition to major revisions, the Coalition’s offers the following comments, which are based on and informed by our extensive experience in applying the provisions of NEPA and its related CEQ regulations.
Beginning with its origin, NEPA has benefitted from exceptional widespread bipartisan support. This bipartisan support could not of been more evident than on July 10, 1969 when the Senate voted unanimously to approve the proposed legislation; the House then followed form by approving its version of the Bill on September 23, 1969 by a nearly unanimous vote of 372 to 15. Following rapid Senate and House approval of the conference committee reports on December 20, 1969 and December 23, 1969 respectively, Republican President Richard Nixon signed the Bill into law on January 1, 1970.
Thus, NEPA established – for the first time in our country’s history – a national environmental policy. Its preamble reads:
“To declare national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.”
The provisions of NEPA and its implementing regulations (hereafter, “the CEQ regulations” or “the rule”) thus provide the fundamental principles and important foundational requirements toward appropriate stewardship of our country’s federally managed public lands, and the resources thereon. Inasmuch, CEQ regulations state:
“The National Environmental Policy Act (NEPA) is our basic national charter for protection of the environment”
Thereafter, it became national policy that prior to approving federal actions with more than a negligible impact on the human environment the public and agency decision-makers must be fully informed on all possible impacts of the proposed action, and that all ways to minimize and/or mitigate potential impacts on air, water, soil, wildlife habitat, climate change, and other aspects of the human environment have been identified and evaluated. The current rules provide guidance on a process that, if diligently followed, ensures that impacts are thoroughly identified, fully disclosed and appropriately addressed prior to approval of federal actions.
Based on extensive technical understanding and applied experience with NEPA, the Coalition supports preserving the current CEQ regulations, and we urge that no major changes to them be further contemplated. We also believe that a thorough science based evaluation of the potential impacts of federal actions is not only required by NEPA, but is also needed to ensure compliance with other statutes as applicable, including but not limited to the Endangered Species Act, Clean Air Act, Clean Water Act, National Historic Preservation Act, Wilderness Act and others. A thorough look at potential site specific and cumulative impacts with appropriate mitigation measures is also needed to help ensure that there is ongoing protection of public safety regarding access to clean air and water, and avoidance of other possible public hazards.
It has been the Coalition’s experience that personnel in various agencies – as well as in the private sector – complain about the time, cost and effort necessary to complete the NEPA process for any given federal action. We believe these complaints are misguided. In short, it is our view that spending time studying, mitigating and addressing possible impacts beforehand is much more efficient and cost effective than attempting to fix them after they have occurred. Stated another way, diligent application of NEPA, because it requires conducting careful examination – including public disclosure of potential impacts and assignment of appropriate mitigation measures – results in better plans, projects and activities.
A quote from the current rule is most relevant here:
“Ultimately, of course, it is not better documents but better decisions that count. NEPA’s purpose is not to generate paperwork – even excellent paperwork – but to foster excellent action. The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment. These regulations provide the direction to achieve this purpose.”
We strongly agree with this. Making major changes to the rule, which appears to be contemplated by the ANPR, will only weaken the capacity of NEPA to fulfill these purposes.
Furthermore, we believe that problems in applying NEPA and implementing its regulations are more commonly the result of failures to devote sufficient funding, staff resources and training for timely and efficient completion of this lawfully required work. Too often, agencies are not provided or allowed sufficient planning and compliance targeted funding to ensure they have well-organized programs and systems, as well as sufficient numbers of appropriately trained personnel, to thoroughly implement the mandates of NEPA in a timely fashion. Because of these shortfalls, agency employees judge NEPA to be a nuisance or obstacle to implementing plans, projects and activities. Consequently, they see it as a process to complete quickly and get out of the way rather than as an opportunity to engage the public, improve projects before they receive final approval, minimize and/or avoid impacts, and to generate greater public acceptance of said projects. Substantially changing the CEQ regulations may only exacerbate this mindset.
Below, we respond to the specific questions presented in the ANPR and offer a few suggestions for minor improvements to the current rule.
II. NEPA PROCESS
The ANPR has posed three questions regarding the NEPA Process (Q 1 to Q 3).
Regarding Q 1 and Q 3 inquiry about the sufficiency of interagency coordination, we believe that the current rule at 40 CFR 1501.6 adequately encourages such coordination, and provides appropriate interagency direction. The current rule sufficiently requires that any agency that has jurisdiction by law has the authority to be established as a “cooperating agency. 40 CFR 1501.6 also encourages any agency with “special expertise with respect to any environmental issue” to become a cooperating agency.
An example of successful coordination throughout the NEPA process is the multi-agency effort to remove the Elwha Dams in Olympic National Park. Coordination between Tribes, state, local and federal entities provided the backbone of this historic NEPA planning process.
Regarding Q 2, the ANPR asks if the rule should be revised to make better use of earlier studies and analyses, including those done by other federal agencies and non-federal entities. We believe the current rule is also sufficient is this arena. For example, 40 CFR 1506.2(b) states that agencies “shall cooperate with State and local agencies to the fullest extent possible to reduce duplication between NEPA and comparable State and local requirements.” Moreover, the current rule encourages “tiering”, under which documentation for individual projects can be tiered to a broader programmatic environmental impact statement (EIS) by referencing studies and analyses used in the broader EIS when needed to support impacts analysis in the tiered project’s NEPA document. Further explanation of this requirement is provided in 40 CFR 1502.20. Therefore, and clearly, both of the above referenced provisions of the rule encourage efficient use of earlier studies and analyses.
Furthermore, use of earlier studies is guided by provisions found in 40 CFR 1502.9(c) which stipulates supplementation of a NEPA document if:
- The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or
- There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.
Finally, CEQ long ago issued guidance on this issue, which we believe is still appropriate, when old EISs might need to be supplemented:
“As a rule of thumb, if the proposal has not been implemented, or if the EIS concerns an ongoing program, EISs that are more than five years old should be carefully reexamined to determine if the criteria in section 1502.9 compel preparation of an EIS supplement.”
We support the current rule and its associated guidance that confirms that earlier studies can and should be used if they are still up to date. Thus, agencies should make use of any existing information relevant to the project or plan that is the subject of a forthcoming NEPA document. However, the respective lead agency has the responsibility to ensure that any information used is factual, up to date, and relevant for the proposal(s) under consideration.
Finally, we recommend adding to the current rule the minor clarification that an EIS or an Environmental Assessment (EA) that is five or more years old is presumed stale and in need of supplementation unless it is demonstrated otherwise, including an opportunity for the public to comment.
III. SCOPE OF NEPA REVIEW
The ANPR has proposed ten questions (Q 4 to Q 13) related to the Scope of NEPA Review.
Q 4 asks if direction concerning page limits and format should be revised. We believe strongly that there should be no hard page limits. By imposing any such limits, the CEQ or individual agencies may thwart appropriate analysis of impacts. Interactions in the environment are complex, and the analysis of possible impacts may be at least as complex. There is no way around the fact that to fully analyze potential impacts and establish possible mitigation, some EISs (and even a few EAs) can be quite lengthy.
Agencies, such as the Federal Energy Regulatory Commission, prepare lengthy EIS’s (some a thousand pages or more as in the case of the Mountain Valley Pipeline), without making a reasoned connection between massive amounts of information and the context, intensity and duration of project impacts. We believe it’s not the number of pages in a NEPA document, it’s the quality of the analysis leading to meaningful public comment and agency decision making that is most important.
Additionally, to keep EISs and EAs at a reasonable length, the current rule has numerous requirements and guidance, including but not limited to: Concentrating on significant issues; writing documents in plain language: summarizing each document, tiering (see section II above); and incorporating by reference. Guidance concerning document length is found in 40 CFR 1502.2(b) and 1500.4, which states:
- Impacts shall be discussed in proportion to their significance. There shall be only brief discussion of other than significant issues.
- These requirements are sufficient to keep EISs at reasonable length while still allowing a full disclosure and analysis of the impacts.
Therefore, we request no change be made to the rule on this issue.
Q 5 asks if the rule should “be revised to provide greater clarity to ensure NEPA documents better focus on significant issues that are relevant and useful to decision-makers and the public…” As noted above, environmental interactions and project effects on the environment are very complex. Any of the possible effects of a project can be significant. Agencies, using their expertise, can determine what impacts are likely to be insignificant or significant. It would be inappropriate to try to determine this using a “one size fits all” process in the rule.
Note that 40 CFR 1500.4(f) the existing rule has the following requirement:
“Emphasizing the portions of the environmental impact statement that are useful to decision-makers and the public and reducing emphasis on background material”
We request no change be made to the rule on this issue.
Q 6 asks if requirements for public involvement should be revised to be more inclusive and efficient? Currently, agencies are required to request comments from the public and affirmatively solicit comments from those persons or organizations that may be interested or affected.
Public involvement is a vital part of NEPA implementation. As stated above, projects, especially controversial ones, are often improved when agencies receive and incorporate public comment. Therefore, the rule should strongly encourage agencies to solicit and respond to public comment. In order to improve the role of public comments in the completion of the NEPA process, we recommend a minor change by adding a new paragraph (f) to section 1505.1, concerning the content of agencies’ NEPA procedures, as follows:
(f) Requirements for affirmative solicitation of public opinion must include invitation to comment by all potentially interested parties and by making all relevant documents easily available to such parties at appropriate times during the NEPA process. These documents shall include all materials cited, quoted, or incorporated by reference in the relevant NEPA document.
Unlike conditions that existed in 1969 when NEPA was passed, by virtue of modern digital technology and the Internet, documents can now be easily placed on agencies’ web pages or, in the case of a controversial project with many large documents (like maps), on an FTP server. This helps ensure transparency in the NEPA planning process. In addition, there is little expense and only slight personnel time needed to post relevant documents.
Q 7 asks if definitions of any key NEPA terms in CEQ’s regulations be revised? With the definition of key terms being clarified over several decades of NEPA application we request no change be made to the rule on this issue.
Q 8 asks if any new definitions of key NEPA terms be added? Certainly, definitions of new terms should be added to the rule.
Q 9 asks if the rule should contain more direction for certain types of documents, including EAs. It is important to note that EAs, which are prepared for projects thought to not have an overall significant effect on the human environment, often document actions that have considerable impacts, even if they don’t quite meet the definition of significance at as outlined in 40 CFR 1508.27. Therefore, the rule should require a reasonable disclosure and analysis of impacts in an EA, and also to require efforts to mitigate, minimize or avoid impacts.
It’s key to acknowledge here that case law has already clarified most of the requirements between EISs and EAs, especially with regard to providing environmental information for public comment (see Sierra Nevada v. Weingardt, 376 F. Supp. 2d at 992, E.D. California, 2005); and consideration of alternatives (see Te-Moak Tribe v. Interior, 608 F.3d 592, 601-602 (9th Cir. 2010; and Bob Marshall Alliance v. Hodel, 852 F.2d 1223 (9th Cir. 1988), cert denied, 489 U.S. 1066 (1988)).
Q 10 asks if the rule’s provisions for the timing of agency action need to be revised. The current rule prohibits a decision within 90 days of issuance of a draft EIS, or 30 days after publication of a final EIS, whichever is later., This requirement is reasonable, in that it prevents an agency from rushing through preparation of an EIS and issuing a decision before impacts and public comments have been fully solicited and considered. Therefore, we request that the timing of agency action does not need to be revised.
Q 11 asks if the provisions in CEQ’s NEPA regulations relating to agency responsibility and the preparation of NEPA documents by contractors and project applicants be revised? We believe that 40 CFR 1506.5 adequately addresses this issue, however, we are concerned about the potential for a conflict of interest when using “third party contractors” to prepare NEPA documents. Often, contractors are not objective when being paid a considerable amount of money by an agency or sponsoring private sector project proponent; hence, contractors can bias their analyses in favor of supporting their source of funding. In addition, while this regulation states that the responsible official shall conduct an independent review of contractor prepared NEPA documents, this does not always happen when the agency does not have sufficient trained staff nor the time to do so, as previously stated in this comment letter. We suggest conflict of interest statements be fully disclosed to the public and if there is evidence of bias in the NEPA process, the contract be terminated.
Q 12 asks if the provisions in CEQ’s NEPA regulations relating to programmatic NEPA documents and tiering be revised? Programmatic NEPA documents and tiering are addressed in 40 CFR 1500, 1502, and 1508. Additionally, CEQ issued final guidance on the use of programmatic NEPA processes/documents on December 18, 2014. This guidance could be woven into the regulations as appropriate to provide further direction to agencies.
As indicated above, we believe programmatic NEPA documents are useful; however, they are often more complicated and require more time to prepare. These challenges can lead to shortcuts in the process that result in poorly prepared or insufficient programmatic documents. Notwithstanding, combining similar project proposals within a relevant project area (and in a tiered NEPA document) may provide a more effective and efficient approach for analyzing potential environmental impacts, including offering value when conducting the cumulative impact analysis.
In practice, it is our experience that programmatic NEPA documents are more commonly overly generalized (and oversimplified) in characterizing both existing conditions and environmental consequences, to the degree that they are not adequate for tiering. Furthermore, we are increasingly seeing Bureau of Land Management oil and gas leasing NEPA documents “tiered” to outdated programmatic Resource / Land Management Plans, or that agencies purposely avoid more thorough analyses all together by issuing a Categorical Exclusion citing the generalized, programmatic plan as sufficient for decision-making. In these cases, site-specific information is often promised at the later oil/gas development phase. In short, these examples potentially indicate a manipulation of the NEPA process wherein decision-makers insufficiently analyze and disclose the impacts of federal actions.
In response, we encourage CEQ to adopt appropriate “standards” for tiering that ensures that sufficient affected environment information and site-specific environmental impacts analyses and mitigation measures are disclosed in a NEPA document so that it is adequate and appropriate for tiering.
Q 13 asks about the appropriate range of alternatives. We believe that current direction requiring agencies to “rigorously explore and objectively evaluate all reasonable alternatives” is very important and should be retained. The section also states that the portion of the EIS document describing alternatives – including the proposed action – is the “heart” of the EIS. 
Additionally, Section 101 of NEPA further details the federal government’s responsibility to assure a safe, healthful, productive and aesthetically and culturally pleasing surroundings,” and “attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences.” With these directives in place we do not see how the purpose of NEPA and the responsibilities of the federal government detailed therein could possibly be met without a rigorous examination of a full range of alternatives. It is especially important to retain provisions requiring rigorous examination of all reasonable alternatives and those that require active solicitation of public comment. Therefore, the CEQ must retain section 1502.14(a). Any substantial weakening of this section would cut the heart out of NEPA.
The ANPR has proposed seven questions (Q 14 to Q 20) related to the General provisions of the CEQ regulations.
Q 14 asks if any provisions of the CEQ’s NEPA regulations are currently obsolete? In our view no sections are obsolete.
Q 15 asks if provisions of the CEQ’s NEPA regulations can be updated to reflect new technologies that can be used to make the process more efficient? Minor recommendations for using the Internet and webpages for sharing studies, data reports, maps and other information are found elsewhere in this comment letter.
Q 16 asks if the rule should be revised to “promote coordination of environmental review and authorization decisions, such as combining NEPA analysis and other decision documents”. This is addressed above in the introduction to section II. Again, the existing rule at 1503.1 requires agencies to obtain comments from other agencies with jurisdiction or relevant expertise. For example, coordinated NEPA documents are regularly used by the Fish and Wildlife Service and the National Marine Fisheries Service for Endangered Species Act decisions, and by the U. S. Army Corps of Engineers for Section 404 permitting under the Clean Water Act.
The current rule therefore encourages coordination with other agencies and reduction of duplication. Thus, a change is not needed.
Q 17 asks if there are additional ways CEQ’s NEPA regulations should be revised to improve the efficiency and effectiveness of the implementation of NEPA. We believe there could be improvements in the regulations regarding the timing of multi-agency decision-making. For example, there are many EIS’s where the agency “promises” to conclude National Historic Preservation Act Section 106 consultation prior to issuing a permit or authorization to proceed. The result is that consultation occurs between draft and final EIS’s and post Record of Decision without the benefit of public engagement. The CEQ regulations could be strengthened to require the results of agency coordination, consultation and public disclosure prior to a final EIS. Substantive changes in a proposal as a result of agency consultations must be fully addressed and publically vetted before the final EIS, not after the fact.
Q 18 asks if there are ways in which the role of tribal governments in the NEPA process should be clarified in CEQ’s NEPA regulations. While the statutory language of NEPA does not specifically mention Indian tribes, the CEQ regulations and guidance do require agencies to contact Indian tribes and provide them with opportunities to participate at various stages in the preparation of an EIS or EA. CEQ has issued a Memorandum for Tribal Leaders encouraging tribes to participate as cooperating agencies with federal agencies in NEPA reviews. Section 40 CFR 1501.2(d)(2) requires that Federal agencies consult with Indian tribes early in the NEPA process. Other sections also refer to interacting with Indian tribes while implementing the NEPA American Indian Religious Freedom Act, Archeological Resources Protection Act, National Historic Preservation Act and Native American Graves Protection and Repatriation Act.
Q 19 asks if there are additional ways CEQ’s NEPA regulations should be revised to ensure that agencies apply NEPA in a manner that reduces unnecessary burdens and delays as much as possible. We believe that data collection and agency sharing of information should occur long before scoping begins. While agency and public scoping helps inform data collection on specific issues, agencies often struggle to collect and maintain baseline information and perform studies until they are well into the NEPA process. For example, the Interagency Yellowstone Bison Plan/EIS was delayed while scientists determined if the transmission of brucellosis between cattle and bison was a significant issue. Upfront planning to monitor existing conditions, collect baseline data, and review relevant studies is necessary inform the NEPA process far more than stating in the Purpose and Need section of a NEPA document that “we have a resource issue, therefore, we must take action to fix it” yet we don’t really have the data to support this conclusion.
Q 20 asks if there are additional ways CEQ’s NEPA regulations related to mitigation should be revised. Currently, EIS records of decision are required to state whether all practical means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not, why they were not. This follows the current rule requiring that monitoring and enforcement programs be adopted and summarized where applicable for any mitigation. Furthermore, agencies are required to “condition funding of actions on mitigation.”
As discussed more fully in section III above, part of NEPA’s purpose is “to prevent or eliminate damage to the environment and biosphere.” Agencies approve actions every day that impact our environment. Requirements for mitigation force agencies to search for less damaging alternatives and/or to design federal actions and apply mitigation measures that reduce impacts. The current provisions on mitigation are needed and appropriate, and must be retained.
In addition, mitigation without adequate monitoring is inefficient. There are far too many cases where agencies promise mitigation and adaptive management (based on the information collected by monitoring) without fully developing these so called “adaptive management” actions during the NEPA process. Ideally, strategies, funding requirements, impact thresholds and limits of acceptable change that may alter the course of a federal action, should be evaluated in the NEPA document.
In closing, while we’ve suggested a few relatively minor updates to the CEQ regulations, we strongly believe that no major changes are needed at this time. It is our view that major changes would likely weaken the application of NEPA to the detriment of wildlife, water quality, air quality, public safety, human enjoyment of the environment, and other values found and conserved by the units of the National Park System.
Please inform us in a timely manner about future opportunities for comment on any proposal to revise the CEQ NEPA regulations.
Chair, Coalition to Protect America’s National Parks
 National Environmental Policy Act of 1969. Pub. L. 91-190, Approved January 1, 1970. 42 U.S.C. 42 U.S.C § 4321 et seq.
 40 CFR 1500.1(a)
 40 CFR 1500.1(c).
 From Questions and Answers About the NEPA Regulations, 46 Fed Reg 18026 et seq., March 23, 1981.
 40 CFR 1503.1(a)(4).
 This is consistent with NEPA’s purpose “…to foster excellent action…” See section 1500.1(c).
 This addresses Q 15.
 40 CFR 1506.10(b).
 40 CFR 1506.10(b) to (d) for qualifications and exceptions to these timing requirements.
 40 CFR 1502.14(a)
 42 U. S. C. 4331.
 40 CFR 1505.2(c).
 40 CFR 1505.3