Hobbling the NEPA Process

We’ve just filed our comments on the National Environmental Policy Act (NEPA) Review. NEPA started out as a seven-page act signed into law in 1970 and serves as the over-arching document that ties together the application of all other environmental laws. This is by way of Title 40 of the Code of Federal Regulations (40 CFR).

So being that NEPA is the hinge pin of Federal Environmental Regulations, it is no surprise that the current Administration wants to potentially “revise and update the regulations to ensure a more efficient, timely, and effective NEPA process.” (Hmmm, grandma, what big EYES you have…)

The public review portal on Regulations.gov seems benign enough. It is a set of 20 questions about the process, scope, and application of NEPA; although I found the delivery pretty annoying – because the review page had no links to 40 CFR text with the processes or provisions under review. So contrary to their stated intent of the review, their process made our review and comment process much less “efficient and timely.”

Admittedly there have been agency shenanigans in applying NEPA over the years. Draft Environmental Impact Statements (DEIS) might have critical text buried in hundreds of pages of drab “boilerplate,” or DEISs with a 30-day public comment period would be issued on the Friday before the December holidays, effectively eating up fifteen days of review time. But as I was pawing through the 40 CFR I found that these issues are actually addressed, leading me to understand that NEPA is not the problem, it is how it has been applied.

But something else came up as I was reviewing the questions: a lot of folks signed on to the comment portal with “cut and paste” comments provided by advocacy groups. The first was a non-germane comment about immigration policy which accounted for probably 25% of all of the (at that time) 1500 and growing comments. Then the members of some well-intended enviro group started pasting comments in – now amounting to over 95% of all of the 7500 comments (and counting) that have come in just over the last few days.

This sort of “clickivism” is really not helpful. While the “well intended” organizations and their members can give a “show of hands” in full public view, frankly it clutters the system. The truth of the matter is that all of the “cut and paste” comments are aggregated into ‘one comment’ so they have little effect on the review process.

Meanwhile with a zillion “comments” from various-and-sundry advocacy groups, manually reviewing the comments becomes impractical (there were 2.8 million “comments” on the revision of the National Parks and Monuments). What ends up happening is that these comments are “read” by an automated document reader, and filtered by topic. Where the real problem lies is in who designs the filters – and what they lump into which categories.

This also gets the Agency off the hook from having to consider any comments beyond a statistical report. This means that my well researched critiques, often with important mathematical models – or in this case a thorough excavation of the Code of Federal Regulations may just end up in some “yea or nay” bin without informing any meaningful integration of the work by qualified technical reviewers into the final document.

Quite simply put, these “well intended” advocacy groups are seriously hobbling the NEPA review process at a time when we really need focused, qualified critiques of the Administration’s proposed dismantling of our environmental laws – not a deluge of finger-wagging copy from an angry public which the Agencies can hide behind.

Participatory democracy is not a “cut and paste” affair.