The US Environmental Protoection Agency (EPA) is excused from complying with Nat
ID: 113376 • Letter: T
Question
The US Environmental Protoection Agency (EPA) is excused from complying with National Environmental Policy Act (NEPA). Why do you think the Nationa Park Service or the US Forest Service has not been granted the same NEPA exemption as EPA?
What do you think of the instituitional incentives of the NEPA process? Does it make sense, for example, for action regencies to write the Environmental Impact Statement (EIS) for the very actions they are proposing? On Canada, by contrast, the EIS process is directed by an independent agency with no interest in whether the proposed action goes forward or not.
Explanation / Answer
The Forest Service has detailed procedures for categorical exclusions from the NEPA process. They include:
A detailed process for determining whether an exclusion applies;
Requirements for documenting use of the exclusion;
A list of exclusions; and
A list of exceptions or extraordinary circumstances in which the categorical exclusion may apply.
Examples of actions that the Forest Service categorically excludes from the NEPA process are closing of roads to protect bighorn sheep during lambing season and approval of minor special uses like one-time events.
Examples of extraordinary circumstances that may trigger a NEPA analysis — even though a proposed action may fit within a general exclusion — include:
the presence of steep slopes or highly erosive soils;
threatened and endangered species or their critical habitat;
flood plains, wetlands, or municipal watersheds; and,
special areas like wilderness or Native American cultural sites.
Whether or not the extraordinary circumstance triggers a NEPA analysis depends on the agency's evaluation of the circumstance and its impact on potential environmental effects of the proposed action.
The Forest Service is required by the National Forest Management Act to prepare plans that outline how it intends to manage each national forest. Those plans are routinely amended and then are supposed to be rewritten every 10 to 15 years in plan revisions. Plans and plan revisions can run into many hundreds of pages and are very complex. Plan amendments can be simple or complex. The Forest Service has to comply with NEPA in its planning for the national forests, but when and how it does so has changed.
In the past, the Forest Service has treated development of forest plans and plan revisions as the kind of action that required a full EIS. The Bush Administration's 2008 planning rules eliminated the requirement that the agency prepare an EIS for all forest plans. Instead, the Forest Supervisor can decide whether an EIS is needed or whether a categorical exclusion applies.
An EIS must clearly state the "underlying purpose and need" for its proposed action. How this purpose and need is framed is important because it governs what alternatives must be considered in the document. For example, in analyzing the impacts of a proposed coal-bed methane development, a broad statement of purpose (e.g., to provide for reasonable energy development within a national forest) is likely to lead to a broader range of alternatives being considered in the EIS than if the stated purpose of the proposal were narrow (e.g., to efficiently develop a particular gas field).
Affected Environment
The EIS must describe the area affected by all the alternatives being considered in the document. This section is supposed to provide enough information so that the public can understand and compare the effects of the alternatives.
Alternatives
An EIS must consider all reasonable alternatives and analyze them in detail. "All reasonable alternatives" includes the proposed action and the "no action" alternative plus other alternatives, even if they are outside the lead agency's jurisdiction. "Reasonable alternatives" does not simply mean what is desirable from the standpoint of whoever is proposing the project. It also includes other common-sense alternatives that are technically and economically practical or feasible. In its discussion of alternatives, the agency must identify its "preferred" alternative.
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