Transcript: Nepa Modifications: Is Government Moving Faster or Sacrificing the Enviroment?
CLARICE: Hello, everybody. And welcome to this week’s episode of Environmentally Speaking.
MARISA: Hi, everyone. I’m Attorney Marisa Desautel, an environmental attorney here in Rhode Island.
CLARICE: And I’m Clarice who sometimes suggests the same topic two, three times in a row.
MARISA: And I am outside today because I spilled coffee all over my workstation, so the two of us are —
CLARICE: Ten out of ten.
MARISA: — kind of a mess, but we’re still going to talk about some important stuff. It just took us a little longer to get to it today.
CLARICE: It did. But this is an interesting topic if you are a procedure nerd, which I think the two of us won’t admit to being, but we are. So I enjoyed reading the article that you found. Thank you for finding this week’s topic.
MARISA: Yeah. And I think that we’ve done a previous podcast episode about this topic. So for folks that are not familiar with something called the National Environmental Policy Act there is another episode that talks about this particular federal statute and the basics behind it. So I’m wondering if we can link that episode in the show notes.
CLARICE: I’ll find it.
MARISA: Because today’s episode is about reform that occurred over the summer with respect to the National Environmental Policy Act. And the acronym associated with this federal statute is called what, Clarice?
CLARICE: NEPA.
MARISA: NEPA.
CLARICE: Which I think is kind of adorable.
MARISA: It is really cute. It sounds like a small cuddly animal.
CLARICE: It does.
MARISA: But it’s not.
CLARICE: No. It sounds like a Pokemon. Like if a 12-year-old was like, I caught an NEPA you’d be like, yeah, okay, sure thing, kid.
MARISA: Let’s keep him.
CLARICE: Yeah.
MARISA: So what’s NEPA? Do you want me to explain, or do you feel like giving it a whirl?
CLARICE: Oh, my explanation would be way too short, so.
MARISA: But please do.
CLARICE: So my vague and short explanation is going to be it’s basically the federal act that covers any and all environmental activity that the federal government is sort of allowed to take. So it covers federal action over the environment.
MARISA: Yeah. That’s right. Yeah. When I was in law school during environmental law and policy class, I think it was, we had a professor who was a delightful man, very quirky, and he gave us this acronym to remember when NEPA applies and the acronym was called M.U.F.A.S.A.K.E. [sic]. I don’t know how all the letters fit and I would likely —
CLARICE: Rolls off the tongue.
[0:02:56] MARISA: — transpose them if I tried to give it to you, but basically it’s any major federal action that’s likely to have an impact on human health or the public. I mean, that’s a shortened version of what M.U.F.A.S.A.K.E. [sic] is, but I always remembered the acronym and then through my years of practice I actually had to deal with NEPA, so that’s generally how that statute is invoked.
CLARICE: So M.U.F.A.S.A.K.E. [sic], that’s the other Pokemon in today’s got to catch them all.
MARISA: NEPA and M.U.F.A.S.A.K.E. [sic]. So what the hell are we talking about..
CLARICE: I was excited about this because when I gave this article a read — well, what excited me was it looks like this reform is to be more efficient and I don’t know if you see that very often. Okay. You’re shaking your head, so you’ve got some skepticism about it.
MARISA: Yeah.
CLARICE: But it sounds like that’s the intent.
MARISA: I really appreciate your positivity and trust in mankind.
CLARICE: I try.
MARISA: But let me break it down a little for you. This is not — again, in my experience, my opinion, this is not — these reforms are not meant to be more protective of the environment. They’re not meant to really streamline things. This is another example of our current administration really putting the screws on environmental regulations and process which is shocking to me because Biden ran on a pro-environmental platform. It just goes to show you if you vote for a president there’s no guarantee that what he’s promising is actually going to come to pass. I usually vote for the green party. Some people would say that it’s a throwaway vote, but in my mind it’s not a throwaway vote because it’s the only party that guarantees environmental protection. I digress.
So Biden’s summer of reform, as we’re calling it, has to deal with the — this is the first time since 1969 that NEPA has been modified. That’s a long time. And the modifications came as a result of, number one, what you mentioned, that they’re — they’re couching this as an attempt to streamline the processes associated with NEPA, but it doesn’t actually do that.
The issue with NEPA is that since it was created it’s become a bureaucratic nightmare to a certain extent. You’ve got something called an environmental impact statement and an environmental assessment and these documents which the federal government is in charge of putting together became Herculean in size. We’re talking about thousands and thousands of pages and as you can imagine drafting those pages takes a very long time.
[0:06:23] CLARICE: Just to pull from the article, they’re saying that some of these documents that you’re saying take an average of 4.5 years to complete and have an average length of over 650 pages.
MARISA: And that does not include the appendices or the exhibits.
CLARICE: No. That’s just sort of the bulk of argument and discussion. Wild.
MARISA: What is the change that’s meant to address the time and — and size of these documents?
CLARICE: Yeah. So they’re looking at putting a page limit so 75 pages for, they’re saying, E.A.s. Tell me — for environmental assessment, again, not counting appendices. I believe it didn’t count something else, as well. Appendices for sure. 150 pages for, it’s say, E.I.S.
MARISA: Yeah. That’s the environmental impact statement.
CLARICE: Okay. And then 300 pages if it has extraordinary complexity. So I guess you’d have to make a special argument to meet that burden. So they’re trying to cut the page limits down. They’re trying to impose a time limit to cut down this four and a half year mark, bring it down to two year. What I thought was an interesting note is if they feel that there’s a failure from either side, it sounds like, that’s not following that two-year sort of time frame to keep things rolling they can impose a schedule, or they can ask for a schedule to be imposed. So if somebody’s taking too long, they can argue to have a schedule put in place. So, I mean, on paper it does sound like they’re moving towards efficiencies, but I’m seeing and I’m hearing from you they’re leaving open space to kind of keep the old way alive. Oh, yeah. The side eye is there. Tell me more.
MARISA: Well, the time frame and the page limit don’t concern me that much. I think a page limit could actually be a good thing. And the time limit by itself, okay, they’re trying to make government move faster. Good freaking luck with that but okay. I see the light at the end of the tunnel. The element here that is concerning to me is that if the government cannot get its environmental assessment and/or its environmental impact statement done in either one year or two years respectively then the new changes to NEPA allow for the project sponsor to petition for a court-imposed schedule, as you just stated, if an agency fails to complete the review and allows the lead agency to extend the time limits, quote, if necessary.
In practice what this actually means is if the government can’t get it done in time — and I fully anticipate that will happen — the project sponsor, the developer, the private corporation, not necessarily an American corporation can petition the court to order the government to move faster. So in reality government is going to feel a lot of stress and a lot of pressure to get this work done before they get sued because once the agency is before a judge there’s a lot of resources extended and that takes away from the manpower and the staffing and the energy that needs to go into doing these environmental assessments or environmental impact statements.
And then it also puts this — it puts an additional burden on the lead agency to explain why an extension of time is necessary. That leads me back to the other issue that we mentioned earlier where additional time may be had for environmental impact statements if it’s an issue of extraordinary environmental detail or whatever that phrase is.
[0:11:12] CLARICE: That complexity piece.
MARISA: Complexity. That’s the word. Thank you. Let me just tell you every environmental assessment and environmental impact statement contains issues that are extraordinarily complex. We’re talking about ecosystems. We’re talking about habitat. Anyone that understands anything about biology knows that if you undertake an activity here it’s going to have an impact here and here and here and here because everything is interrelated.
CLARICE: And here’s a — here’s a really basic question, but who are these briefs getting put in front of? Are these getting put in front of other experts or people who are going to easily understand that sort of complex chain, or are these briefs getting put in front of folks who need to see that chain laid out?
MARISA: NEPA was meant to hold federal government to a standard where the public could see what government was doing about federal major activities that were likely to impact the environment. It is meant to be a transparent process where an environmental assessment comes out and the public is provided an opportunity to review it and comment on it. And then the agency is supposed to consider those comments, respond to the substantive comments as they see fit.
Same thing with the E.I.S. As part of that process and drafting those documents, the federal government is also supposed to reach out to other agencies for something called a scoping period which means, let’s say, for example, we’re the Air Force and we want — this is a project that’s going to occur in Rhode Island. We want to hear from the Rhode Island DEM and the CRMC and the town in which this project is going to occur, so here’s the public notice and comment period. We want to hear directly from you guys and we want to take your comments and put them into the document.
So the purpose of NEPA was good, but by shortening the time frames and shortening the page limits and then allowing for a developer to sue if the government doesn’t move fast enough, that completely defeats the purpose of NEPA. I don’t see this as a streamlining process. I see this as another opportunity where the Biden administration is giving developers a really unfair advantage.
I know in my experience in federal court working on something called the Weavers Cove LNG project where the state was opposed to the project the developer sued the state in federal court for this very issue. The state didn’t make a decision in time according to the federal statute that was in play. I don’t think it was NEPA. Maybe it was. I forget. But by the time the matter was heard by the federal court — and we argued it in both federal court in Rhode Island and district court in D.C. — the issue was moot because the government said, we don’t have it done, but we’re still working on it. The developer was not happy.
By the time we got to court, the decision had been rendered. So the court said, well, developer, your argument is moot because the state issued its decision. Yeah, it was late, but it’s now been issued, so what are we doing here. I see this change to NEPA as unless government has the resources to issue the decision before the matter gets to a judge then, like I said, they’re going to have to expend time and resources like we did for Weavers Cove defending instead of working on the decision.
And what if they can’t get the decision done in time. The developer can enforce a schedule? Okay. Presumably government doesn’t need the schedule. They’re working as hard as they can to get it done. It just takes time. I mean, anyone that’s dealt with the government knows that shit takes time. I don’t know if there’s a penalty associated with blowing a schedule. What if the court orders a schedule and the government can’t get it done? Then what? Then it’s an automatic approval? Is that what we’re talking about? Does the developer just get — yeah, your project’s approved because the government couldn’t get the report done in time. But that doesn’t make any sense, so what’s the point of having a court-ordered schedule? There’s already a schedule in the statute. What are we doing?
[0:16:38] CLARICE: No. That brings up a really good point that I didn’t think about because now that you’re telling this story I’m now thinking about a couple weeks ago we did that episode about [inaudible] thinking about pulling out of the wind project because we’re not moving fast enough, we as in the government. Could that be an argument? This is no longer profitable.
MARISA: Sure.
CLARICE: Could that be —
MARISA: Yeah.
CLARICE: — something?
MARISA: Yeah.
CLARICE: And, you know, there are so many situations where there’s not enough study being done. This could be so harmful. There are arguments being put in place, but that private company is louder and has lots of funding.
MARISA: More money, yeah. Yeah. And now they’ve got the backing of the United States federal government.
CLARICE: Okay. Well, look at that. I came in so hopeful and happy about this article.
MARISA: You should know better. All right.
CLARICE: Dammit.
MARISA: That’s all I got for the day.
CLARICE: Well, on that note, I’m Clarice and I’m changing my mind. So we will put a link to this article in the show notes as always. We’ll try to find the other episode that we had discussing NEPA, so that way you can go back and give that a listen, too. Reach out to us on the socials. We are Desautel Browning Law on Instagram, Facebook, Twitter. You can watch our videos on YouTube. I haven’t said this in a while, but if you feel so inclined you can like us and rate us wherever you listen to podcasts.
MARISA: Oh, that’s a good point.
CLARICE: Once in a while it’s always nice to see.
MARISA: Yeah. And if you have any questions you can e-mail me. My e-mail address is info@DesautelBrowning.com.
CLARICE: Wonderful.
MARISA: I saved you.
CLARICE: Thank you so much. On that note, have a good one, guys.
MARISA: Bye, everybody.
