Don’t gut environmental review
Tucked away in the massive Water Resources Development Act of 2013 (S.601) now being considered by the U.S. Senate are provisions that would short-circuit the environmental review and public participation requirements of the National Environmental Policy Act better known as NEPA.
The Water Resources Development Act is a $12 billion bill that authorizes the U.S. Army Corps of Engineers to construct dams, navigation channels, sea walls and other flood control structures. History has shown that without careful analysis of impacts and alternatives, and the input of the affected communities, these projects can result in unnecessary environmental damage and wasteful federal spending at a time when the nation can ill afford it.
A prime example is the Mississippi River Gulf Outlet built by the Army Corps to provide a navigation channel between New Orleans and the Louisiana coast. When Hurricane Katrina hit the coast, it sent a huge tidal surge up the channel and straight into the heart of the city, causing devastating damage. In a lawsuit seeking damages on behalf of property owners and others, a federal court found that the Corps was negligent in operating the channel, in part due to its failure to take account of risks identified in the environmental impact statement.
Though the appellate court ultimately ruled that the Corps was immune from suit, the point is that the NEPA process revealed the risks and afforded the Corps the opportunity to modify the project, incorporate contingency plans, and perhaps avoid or at least mitigate the devastation that followed.
Closer to home, NEPA has played a significant role in protecting Vermont’s priceless environment while saving taxpayer dollars. Thanks to NEPA, Vermont Yankee was one of the first nuclear power plants to be built with cooling towers to prevent harm to the fisheries of the Connecticut River. Thanks to NEPA, a group of concerned citizens was able to preserve the wilderness character of the remote, beautiful and wildlife-rich Lamb Brook roadless area in the Green Mountain National Forest near Wilmington. Thanks to NEPA, another group of concerned citizens was able to prevent the construction of the outdated and expensive Chittenden County Circumferential Highway — the “Circ” — until government officials could be persuaded to pursue more cost-effective and less sprawl-inducing alternatives.
NEPA is the ultimate common-sense law: Look before you leap. Do your homework. Consider your options. Disclose the facts. Welcome public input. Think long term. Properly done this leads to better decisions, stronger public support and fewer nasty surprises.
Unfortunately, there are forces in Congress impatient to get on with building projects that will funnel money back home. For them NEPA is an obstacle to be swatted aside. These forces have already succeeded in exempting many major road projects from NEPA review in a transportation bill passed last year. Now they have their sights set on the omnibus water bill before the Senate.
Specifically, the bill would impose artificial deadlines on environmental reviews by federal and state agencies with special expertise on wildlife, air and water pollution, historic sites and other environmental issues. The bill gives the Corps too much power to override the objections of its sister agencies and to ram projects through to approval without adequate public notice and comments. In fact the chief of the Army Corps testified against the bill, saying it would violate the Corps’ own regulations and create a backlash that could delay projects rather than speed them up.
Our own Sens. Leahy and Sanders have been stalwart defenders of NEPA and other environmental laws. But they find themselves in an awkward position because the bill has the strong support of Sen. Barbara Boxer, the chairwoman of the Senate Environment and Public Works Committee, who is normally a staunch defender of the environment. Gutting NEPA appears to be the price that was paid to move the bill out of committee.
But the stakes here are larger than any one bill or political compromise. Our senators need to hear that Vermonters oppose this steady undermining of the nation’s premier environmental law, what some consider the Magna Carta of environmental rights. These anti-democratic provisions must be stripped from the Water Resources Development Act when it comes to the floor. For over four decades, NEPA has served the nation well. It deserves our support in its hour of need.
Patrick Parenteau is a professor of law at Vermont Law School.