Tucson, Ariz. (March 9, 2020)—On January 10, 2020, the Trump administration published proposed regulatory changes in the Federal Register. These changes relate to the National Environmental Policy Act (NEPA), which was signed into law by President Nixon fifty years ago. This bedrock legislation prescribes a series of steps federal agencies, applicants for federal permits, and citizens use to review federal projects that might impact plant and animal species (including us) and natural and cultural landscapes.
Specifically, federal agencies are required to produce balanced, interdisciplinary, evidence-based environmental assessments (EAs) and environmental impact statements (EISs) as part of their reviews. For example, EISs detail any problems that might occur because of a federal undertaking and offer alternatives. They are published as a matter of public record and followed by a public comment period.
In our view, the proposed changes severely and deliberately undermine NEPA’s purpose and intent. Archaeology Southwest has joined tens of thousands of concerned individuals and organizations from across the country in voicing serious concerns with the rulemaking changes, which are deficient in at least six key areas.
John R. Welch, Director of Archaeology Southwest’s Landscape and Site Preservation Program, identifies these deficiencies and our objections in the following statement. Welch’s comments summarize formal commentary Archaeology Southwest is submitting to the federal government on Monday, March 9.
“Environmental Assessments (EAs) would be limited to one year and 75 pages, and Environmental Impact Statements would be limited to two years and 150 pages—300 pages for projects of ‘unusual scope or complexity.’ The imposition of arbitrary page and time limits on NEPA processes will result in poor decisions and needless delays.
“Proponents of projects subject to federal agency review under NEPA would be allowed to produce EAs and EISs regardless of actual or apparent conflicts of interest. We are unable to identify a single principle of good governance, management, or administration that would permit an applicant for assistance to prepare the document to be used in making a decision about whether a government or other body might provide that assistance.
“Agencies could refrain from NEPA analysis of any action they determine is not ‘major.’ Agencies would no longer be obliged to analyze or document indirect or cumulative effects. Executive branch agencies at all levels of government exist to enact and implement the intent of lawmakers, not to make their own rules without oversight or parameters. Allowing agencies to control their own NEPA workloads and flows by empowering them to define ‘major’ and to ignore secondary and future consequences from federal actions is inconsistent with congressional intent. Congress created a law that requires transparent federal analytic and planning processes proportional to the breadth and depth of environmental impacts. No Proposed Rule may be adopted that conflicts with these and other elements of congressional intent.
“Alternatives to a proposed action, and measures to mitigate an action’s adverse effects, would have to be ‘practicable,’ as defined by the relevant agency, possibly with input from project proponents. Agencies could categorically exclude proposed actions from NEPA analysis even when ‘extraordinary circumstances’ could still lead to significant impacts, so long as mitigating factors are determined by the agency to be sufficient to avoid those significant effects. Here, too, the Council on Environmental Quality (CEQ, established by NEPA to advise the president and issue guidance and further regulations) appears interested in relieving federal agencies of statutory obligations and opening agency doors to undue influence from project proponents.
“Judicial review could only be filed after a federal agency’s Record of Decision, rather than upon agency completion of the Final EIS. Only parties that participate in the public comment period of an EIS may participate in litigation. The federal agency could impose ‘an appropriate bond requirement or other security requirement as a condition for a stay.’ These provisions are inappropriate, and constitute undue attempts to decrease transparency and accountability in federal agency decision making. The provisions place undue burdens upon citizens, and limiting access to legal remedies runs counter not only to NEPA’s original intent, but also to fundamental tenets of legitimate governance and resource management.
“Mitigation measures would need to have a ‘nexus to the effects of a proposed action.’ Inexplicably, this provision appears to reverse and even eliminate noteworthy and industry-embraced advances in compensatory mitigation and other creative means for preserving resources comparable to those slated for alteration by a proposed action.”
In summary, Archaeology Southwest calls for the proposed changes to be withdrawn or substantively revised. Standards of excellence for implementing the NEPA process should be continually raised, not degraded. The comments are available in their entirety here (opens as a PDF).
About Archaeology Southwest
Archaeology Southwest is a private 501(c)(3) nonprofit organization based in Tucson, Arizona, that explores and protects the places of our past across the American Southwest and Mexican Northwest. For three decades, Archaeology Southwest has fostered meaningful connections to the past and respectfully safeguarded its irreplaceable resources. Learn more at archaeologysouthwest.org.
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John R. Welch
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The comments are available in their entirety here (opens as a PDF).