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October 05, 2005

Why Not Categorically Exclude Everything?

With the continued spate of exclusions from law, some of us are now wondering why the legislature, hand in hand with administrative agencies and the administration, doesn’t just go for the whole enchilada. Why not just write a blanket provision saying, "Henceforth all federal 'good projects on the ground' will be exempt from NEPA, NFMA, ESA, the National Historic Preservation Act, …."

The latest in the series of exclusions cleared the House Committee on Resources on September 28th as an energy bill that would exempt certain oil and gas activities from review under the National Historic Preservation Act. The bill has not yet been scheduled for a vote in the full house. The bill would exempt ground-disturbing activities (oil and gas pipelines, etc.) on non-federal land from review.

As now written the energy bill amends Section 106 of the National Historic Preservation Act to exempt "any federally authorized activity, including the issuance of any drilling permit, right of way, or authority to conduct any other surface-disturbing activity, related to the development of Federal oil and gas resources where the surface estate is owned by a non-Federal landowner, unless specifically requested by the non-Federal surface landowner". (emphasis added)

You can find the language of the proposed amendment on page 6 of the bill at [pdf]. The Committee's website is here.

Posted by Dave on October 5, 2005 at 03:04 PM | Permalink


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Posted by: Jerry Ingersoll

Hyperbole, maybe? In Sec. 102 of NEPA, Congress compelled agencies to consider and disclose environmental impacts prior to taking "major federal actions with a significant effect on the human environment." Implicit in this requirement is the idea that some federal actions require more evaluation and consideration than others. Drawing that line is never easy, and reasonable people (and reasonable judges) may disagree over where to draw it. I think the track record over the last 35 years has been (at least for the FS) that we've been writing more numerous and exhaustive EAs and EISs, doing more ESA consultation, and conducting more and better Sec. 106 evaluations while actually doing less in the way of treatments on the ground.

Congress arguably wrote NEPA, NHPA, and other environmental laws in part as a check on Executive Branch action -- a principle that doesn't apply when Congress takes the action itself. If Congress decides that an action ought to be taken on federal land, Congress may determine that that action doesn't need additional evaluation. Ultimately, the framers gave to Congress the authority to regulate the federal lands.

In this case, the question appears to be the extent to which federal law should protect heritage resources on private lands from damage resulting from exploitation of underlying federal oil and gas. Reasonable people may disagree on the substance of the question, but isn't it more appropriate for an elected Congress to resolve these questions than to leave them up to the courts?

So, should Congress do away with environmental procedural requirements altogether, or categorically exclude everything? It is up to Congress to determine whether these acts are fulfilling their purposes. But I, personally, think they remain good laws and are based on good principles for Executive Branch action. I also firmly believe that it's appropriate for Congress to set the boundaries for their application by determining where and when environmental laws apply. The fact that Congress sometimes exempts specific projects from analysis is perhaps an indicator of problems with the application of environmental laws, just as the social activism of the 1970s was an indicator of problems with unfettered Executive Branch action.

So should Congress exempt everything from environmental review? I don't think so. Is it proper for Congress to choose which projects and which activities require review? I think it is.

Jerry Ingersoll | Oct 28, 2005 9:13:58 AM

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