Environmental 'Magna Carta' law under fire

What do whales off the Pacific Coast, fire-blackened forests in Colorado, and farmers in Oregon's Klamath Basin have in common? All are involved in lawsuits centered on the National Environmental Policy Act (NEPA) – the most sweeping of all US environmental laws.

This means they're also involved in a political confrontation over the future of a law that the Bush administration wants to rein in and environmentalists are fighting to preserve.

Signed into law 32 years ago by Richard Nixon, NEPA has been called "the Magna Carta of environmental laws." It's championed by activists who use it as a legal lever to expose – and in some cases halt – environmentally damaging development proposals. But developers see it as an unfair roadblock to legitimate projects. And it's a source of frustration for some government-agency officials. They complain that the law produces "analysis paralysis," preventing them from effectively managing hundreds of millions of acres of federal land.

Under NEPA, federal agencies have to study all the environmental impacts that every proposed federal project might have. That includes deciding whether the Navy can boom the depths of the sea with advanced sonar, figuring out how to repair the more than 6 million acres of federal land that burned this summer, and making Solomon-like allotments of scarce water to farmers and fish threatened with extinction.

Agencies must gather public comment and consider the alternatives before going ahead with any project. In essence, it's a kind of "sunshine law," opening the political process involving environmental decisions to all Americans. Anyone – from a single grass-roots conservationist to the powerful Sierra Club with its own lawyers – can delay (if not squelch) a development project by filing legal appeals.

Now, even as courts look likely to settle some of the political debates that have arisen as a result of the law, the Bush administration wants to streamline NEPA.

Earlier this year, the White House Council on Environmental Quality (CEQ) set up a task force of federal agency officials whose goal, says CEQ chairman James Connaughton, is to "move federal environmental analysis and NEPA documentation into the 21st century." This process is expected to take several months, and it draws heavily on public comment from a wide range of interests that could be affected.

Not surprisingly, foresters, shareholder-owned utilities, homebuilders, highway officials, and other industry leaders whose work affects the environment have advocated reform of NEPA.

"The NEPA process can impose significant regulatory burdens on our industry," says J. Michael Luzier, senior vice president of the National Association of Home Builders. "We are keenly interested in ways the NEPA Task Force can help streamline the process [and] reduce regulatory burdens."

One noticeable change since passage of the law in 1969 is the dramatic advance in technology used by those who manage (or watchdog the management of) public lands.

"The personal computer, computer-aided design, geographic information-systems mapping, and the Internet have all emerged and come into the mainstream during this period," says John Horsley, executive director of the American Association of State Highway and Transportation Officials. "Paradoxically, in the context of NEPA, new technological tools can actually end up creating new opportunities for delay, rather than expediting the process."

CEQ chairman Connaughton wants the task force to take these new technologies into account in examining environmental rules.

But what the White House touts as reforms in the name of regulatory efficiency, critics see as undermining a law that – more than any other – is the one legal tool grass-roots groups and individuals have to prevent special interests and their friends in office from doing damage to the land.

Given the president's environmental views, they're suspicious to start with. They note that, among other things, Bush has sought to undo environmental laws enacted by the Clinton administration. And on NEPA, says Sharon Buccino, an attorney with the Natural Resources Defense Council in Washington, "the administration has continually sought to circumvent it."

Some examples: In his "Healthy Forest Initiative," Bush would exempt certain areas from NEPA review in order to speed up rehabilitation (including logging) in forests damaged by fire. The administration says NEPA should not apply to offshore military activities out to the 200-mile limit of the US Exclusive Economic Zone. (A federal judge recently sided with environmentalists on this point.) In September, the president issued an executive order to speed up the environmental review process for high-priority transportation projects.

"So far the administration is going in the wrong direction," says Ms. Buccino.