NEPA

Two women were “writing furiously” their opposition to proposed NEPA rollbacks Sunday at Ute Mountaineering, where local advocacy groups held a public outreach session on the matter.

For interested parties or those unfamiliar with the Trump administration’s proposed updates to the National Environmental Policy Act, or NEPA, who missed the national public forum held Feb. 11 in Denver, the Colorado Wild Public Lands and Independence Pass Foundation are teaming up to offer local informational sessions and opportunity to submit comment before the March 10 cutoff.

The first of two such sessions occurred Sunday afternoon at Ute Mountaineer in Aspen. Within the first hour, the small group of representatives of the respective advocacy groups had garnered about 15 personally written postcards.

“NEPA is the cornerstone of environmental advocacy because it requires the federal government to provide a very high level of detail to the public about proposed federal projects and how they could impact the environment,” Colorado Wild Public Lands board member Anne Rickenbaugh said. “That not only makes an informed public, but it also allows the public opportunity to participate and comment, which is a very important part of NEPA.”

Under the proposed changes from the Council on Environmental Quality, or CEQ, however, the nature of how agencies relate with the public when soliciting feedback could change drastically, according to the Durango-based Western Environmental Law Center.

“CEQ, their regulations are binding on all federal agencies,” explained Susan Jane Brown, a Washington-based, environmental staff attorney with Western Environmental Law Center. “This proposed rule ... allows federal agencies, when they develop their own NEPA procedures, to require the public to basically give money to the government or to the agency in order to comment on projects. If a project is going through the NEPA process and the agency goes out to the public, that agency’s regulations could require the public to put up money to participate.”

Indeed, on the eleventh page of almost 50 in the proposal, there is a note that the “CEQ invites comment on whether there are disclosure or other transparency requirements that should be required when agencies establish bond or security requirements or other conditions.”

Brown maintains that the legal language is intentionally opaque, and words like “could” and “may” have huge implications — maybe.

“That's not to say federal agencies are going to impose that requirement, but the fact that NEPA is saying you can require that, that is crazy,” she said. “This is another one of those devils in the details. It moves some language around and puts it in different places and it also adds a bunch of new language, and it also removes existing language. It’s super weedy and very technical, and having a good understanding of what all that means in practice is challenging.”

Even Rickenbaugh, who has read most of the proposed rule extensively, hadn’t realized that implication — that the public could in theory need to post a monetary bond in order to ensure administrative review of a proposed development.

“That’s really bad,” she said. “It eliminates 75 percent of the groups that would comment on these things.”

Suzanne Jackson, also of Colorado Wild Public Lands, pointed out that there are other provisions in the proposed regulations that, in her view, would effectively stifle public comment.

“They ask them to comment on a specific item instead of commenting generally,” she said.

“And that makes it very difficult, too, because not everybody is technically oriented, but they know that they want to have a voice in what’s going on — or they know that there’s alternatives, but they don’t have the time or the understanding to look at the nitty-gritty legal language.”

In the CEQ’s summary of the proposed rule, it states that the “CEQ further proposed to make revisions … to ensure … that comments are specific as possible.” 

Again, in a subsequent section, the proposal emphasizes “that comments on the submitted alternatives, information and analyses section should identify any additional alternatives, information or analyses not included in the draft [environmental impact statement], and should be as specific as possible.”

Additionally, new timetables — proposed in the spirit of efficiency, according to the CEQ and stakeholders in favor of the proposal — would clarify “that agencies are required to consider substantive comments timely submitted during the public comment period.”

Comments deemed lacking in substance or filed too late will be forfeited, it continues.

Supporters of the NEPA proposal — referred to as either a modernization act or a rollback, depending on which side of the political aisle it’s being discussed —  maintain that its current iteration is outdated and has been abused to create unnecessary hurdles in development projects.

“CEQ’s NEPA regulations date back to 1978 and have not been comprehensively updated in over 40 years,” according to a CEQ press release. “NEPA has been used as a tool to slow or completely kill important infrastructure projects across the country.” 

While CEQ’s official stance is that even for a complex project, undertaking an environmental impact statement should not be a process that requires more than a year to complete. 

“CEQ found that, across the federal government, the average time for completion of an EIS … was over 4.5 years and the median was 3.6 years,” according to the CEQ proposal. 

Additionally, it continues, while regulations include recommendations that the final text of an EIS should be less than 150 pages, or 300 pages if a project is particularly complex, the current average page count for an EIS is 586 pages with a median of 403 pages.

But for opponents of the proposal, those pages provide nuance, such as indirect and cumulative effects of a would-be project — a distinct departure from current regulations, Rickenbaugh said.

“It requires the federal government to consider cumulative impacts in their decision making, so that each project isn't considered in a vacuum, they’re considered in a larger picture,” she said. “The administration wants to gut the rules.”

Brown echoed those concerns.

“The proposed rule specifically states that cumulative impacts are not required, and that’s a substantial change of the status quo,” she said. “In the current rule, it requires the consideration of indirect effects. The new rule says it may be required, not required. So that’s one of those devils in the details. We have no idea how a particular federal agency may interpret loose language like that that doesn’t use words of commandment.”

Sunday’s session was the first in a two-part outreach effort for Colorado Public Wild Lands.

At 5 p.m. on Tuesday, March 3, the organization is hosting another informational and postcard-writing session at Roaring Fork Conservancy, 22800 Two Rivers Rd., in Basalt. 

Even Colorado Sen. Cory Gardner said in an interview Thursday that such public comment — including the criticism — is critical to ensure a fair process.

“I think what we need to do is make sure we get the feedback that highlights — to make sure any change represents the best interest of the public,” he said. “I think we do need to make sure we have policies that allow us to do what we can to protect the environment, grow the economy and balance both of them. I don’t think they have to be zero-sum. We can do both. That public feedback, that criticism is important to make sure the rule gets done in the right way.”

Both Rickenbaugh and Brown foresee more forceful feedback than mere postcards in the long run, however. 

“The projects they’re trying to do under the new regulations, that’s when the lawsuits will start. Groups like ours will start filing for injunctions on those projects,” Rickenbaugh said.

Brown suggested that one such lawsuit may raise a question as granular as “should NEPA have been done on the NEPA rule.” 

“I would expect there to be facial challenges to the rule itself, as well as ‘as applied’ challenges that challenge either the entire set of regulations or particular subsections in conjunction with a site-specific project,” she said.

CEQ, too, anticipates legal challenges, so it proposed a “‘severability’ to address the possibility that this rule, or portions of this rule, may be challenged in litigation,” its proposal states. “It is CEQ’s intent that the individual sections of this rule be severable from each other, and that if any sections or portions of the regulations are stayed or invalidated, the validity of the remainder of the section shall not be affected and shall continue to be operative.”

Megan Tackett is a reporter for the Aspen Daily News. She can be reached at megan@aspendailynews.com or on Twitter @MeganTackett10.