NEPA Adaptation and Controversey: A Brief History of NEPA and How it Has Changed American Planning Association • 2017 National Planning Conference Sunday, May 7, 2017 • 4:00 – 5:15pm Session #9109684
His istoric ical l Fou oundations of of the EI EIS Events + Theories + Organizations + Regulations = Change
Ev Events • 1952 London Smog • 1960 Jacques Cousteau and Prince Rainier III of Monaco publicly oppose French plan to dump radioactive wastes into the Mediterranean • 1966 - 74 -- French begin nuclear testing at Moruroa in the South Pacific, French Polynesia • 1969 Cuyahoga river bursts into flames 5 stories high from oil and chemical pollution • 1969 Santa Barbara Oil well explodes off the coast of California spills 235,000 gallons of oil and covers 30 miles of beach with tar
Theor Th ories • 1960 -- US Congress funds two-year Public Health Service study on air pollution from cars. • 1962 -- Silent Spring written by Rachel Carson first appears in the New Yorker then as a best seller • 1968 -- Paul Erlich publishes The Population Bomb • 1968 -- Garrett Hardin publishes his article Tragedy of the Commons in Science
Organization ons • 1961 -- World Wildlife Fund • 1964 – Hazel Henderson Citizens for Clean Air in New York • 1966 -- Barry Commoner establishes Center for the Biology of Natural Systems • 1967 --Environmental Defense • 1970 -- Natural Resources Defense Council • Previously existing organizations Sierra Club and National Wildlife Federation, Defenders of Wildlife
Regu gulation ons • 1963 -- Nuclear Test Ban Treaty between U.S. and U.S.S.R. (Russia) stops above ground tests of nuclear weapons. • 1964 --Sept. 3-- National Wilderness Preservation System is created • Administrative Procedures Act of 1946 procedural guarantees for public notice and group comment during rule making • 1966 -- Freedom of Information Act
Con ongressional I Intent The National Environmental Policy Act (NEPA) [42 U.S.C. 4321 et seq.] was passed in 1969 and signed into law on January 1, 1970. “ The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high- density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans. ”
How Has t the NEP EPA Proce ocess C Changed? • Procedural Changes • Lawsuits • Changes in Applicable Laws • Changes to the Adversarial Nature of NEPA
Proce ocedural C Change Number of EISs Submitted 1979-2014 1400 1200 1000 800 600 400 200 0 All EISs Submitted Final EISs Submitted
Proce ocedural C Change Why? • Development of the environmental assessment process as a way to provide answers as to whether there is a likely significant impact before doing the entire • Development of categorical exclusions, which lists projects that have historically not had impacts so that studies aren’t needed of those projects
Movi ving g Su Suits i into R o Revi views Example NEPA and DOT 4(f) • DOT Act of 1966 required government to demonstrate that there are no “ feasible and prudent alternatives to building through public lands. ” • 1968 DOT is building I40 in Memphis. They decide to go through Overton Park. No findings are made as to why. • Supreme Court rules in Overton Park v. Volpe that findings must be made and orders the project stopped. http://www.pbs.org/program/ten-that-changed-america/10- parks-changed-america/ Minute 31:40
Moving La Laws s into R Reviews California CEQA and GHG • The California Global Warming Solutions Act of 2006, required a sharp reduction of greenhouse gas (GHG) emissions. • Senate Bill 97 (Chapter 185, 2007) required the Governor's Office of Planning and Research (OPR) to develop recommended amendments to the State CEQA Guidelines for addressing greenhouse gas emissions. OPR was required to prepare, develop, and transmit the recommended amendments to the Natural Resources Agency on or before July 1, 2009. • The Natural Resources Agency transmitted the adopted amendments and the entire rulemaking file to the Office of Administrative Law (OAL) on December 31, 2009. On February 16, 2010, the Office of Administrative Law approved the Amendments, and filed them with the Secretary of State for inclusion in the California Code of Regulations. The Amendments became effective on March 18, 2010.
Yet still peop ople c com omplain a abou out length (time/mon oney) for or a an EI EIS • Too many projects have to be studied • Project have to study topics that are not relevant to the project Years to Complete EIS By Variable With Without 4(f) Review 4.7 2.8 404 Permit 4.3 2.4 Above Median Below Median Meetings 4.5 2.4 Public Hearings 4.2 2.7
La Lawsu suits Total NEPA EIS Filed Total Cases Filed 700 597 594 600 558 554 553 553 534 504 492 500 400 300 200 150 150 137 130 132 118 108 97 86 100 0 2001 2002 2003 2004 2005 2006 2007 2008 2009 http://www.epa.gov/compliance/nepa/eisdata.html? http://ceq.hss.doe.gov/legal_corner/litigation.html
Who S o Sues? Percent Suits by Plaintiff Type Business Groups, 6.5% Local Govt, 4.8% Multiple, 10.8% Indian Tribes, 3.1% Individual Citizens, 17.3% State, 2.7% Property Owners, 2.4% Other, 0.2% Public Interest, 52.1%
U.S. Su Supreme Cou ourt a and St Standing • Standing (Injury, Causation, Redressability) • U.S. v. SCRAP granted broad interpretation of who in fact is injured. (1971) • The injured party must be particular people not organizations (Sierra Club v. Morton 1972) • Court rejected view that citizen suit provision of the statute conferred upon all persons an abstract, self-contained, non- instrumental ‘ right ’ Rather, an American citizen plaintiff must have suffered a tangible and particular harm. (Lujan v. National Wildlife Federation 1992) • Ecuador – Rights of Nature http://www.nytimes.com/2008/12/14/magazine/14ideas-section3-t-003.html
Who G o Gets Sued? 90 USDA* 80 DOI* 70 DOT* Number of Suits Per Agency DOC - NOAA 60 USACE FERC 50 Navy 40 NRC EPA 30 DOE 20 Army HUD 10 FCC TVA 0 2003 2004 2005 2006 2007 2008 2009 GSA Axis Title USDA includes FS and APHIS DOI includes BLM, FWS, BuRec, NPS, BIA/NIGC, MMS, OSM DOT includes FHWA, FTA, FAA
Cause of of the Suit 8% 5% 31% Inadequate EIS 10% No EIS Inadequate EA No EA No SEIS Other 22% 24%
Su Succe ccess of of Su Suits NEPA Litigation Survey 2001-2013 350 300 250 200 150 100 50 0 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 Final EIS Lawsuits Rulings for Plaintiffs
Con onflict ct R Resol olution on • In 1998, Congress passed the Environmental Policy and Conflict Resolution Act. o Established to assist Federal Government in implementing section 101 of the National Environmental Policy Act of 1969 (42 U.S.C. 4331) o Provides assessment, mediation, and other related services to resolve environmental disputes involving agencies and instrumentalities of the United States. • In 2005, OMB & CEQ issued a joint “Memorandum on Environmental Conflict Resolution” • In 2012, OMB & CEQ issued a join “Memorandum on Environmental Collaboration and Conflict Resolution”
How Doe oes Sc Scop oping F g Fit into o Nor ormative Theor ory of of Pl Planning? g? • Problem identification • Data gathering • Goal setting • Identification of policy alternatives • Weighing of alternatives/means v. ends • Implementation • Evaluation
Th Thou ough ghts f for or Discu cussion on • If there was one thing you could change about the environmental review process under NEPA, what would it be and what would be the result? • What role do you think planners should play in the NEPA process? How could the strengths of planners be better utilized for better outcomes? • What are the barriers to more robust participation in environmental review by planners? How could these be overcome?
Discussion / Di on / Q&A Lisa Schreibman, Director of Strategic Planning, Operations Planning MTA-New York City Transit lisa.schreibman@nyct.com Diana Mendes, HNTB Corporation Senior Vice President National Transit/Rail Market Sector Leader dmendes@hntb.com Moderator: Lindy Wordlaw, Senior Manager, Public Sector Programs Elevate Energy Lindy.Wordlaw@ElevateEnergy.org
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