The National Environmental Protection Act, more typically
referred to as “NEPA,” was signed into law by President Richard Nixon on
January 1, 1970, after receiving unanimous approval in the Senate and broad,
bipartisan support in the House of Representatives, where it passed on a 372-15
vote.
As its name suggests, NEPA establishes a national environmental policy
that, among other things, would
see the United States government “fulfill the responsibilities of
each generation as trustee of the environment for succeeding generations.”
In order to do that, NEPA requires that
all federal agencies “include in every recommendation or report on
proposals for legislation and other major Federal actions significantly
affecting the quality of the human environment, a detailed statement from the
responsible official” that addresses
i.
the environmental impact of the proposed action,
ii.
any adverse environmental effects which cannot be avoided should
the proposal be implemented,
iii.
alternatives to the proposed action,
iv.
the relationship between local short-term uses of man’s
environment and the maintenance and enhancement of long-term productivity, and
v.
any irreversible and irretrievable commitments of resources
which would be involved in the proposed action should it be implemented.
Such so-called “environmental impact statements” are not mere
bureaucratic exercises to be completed before a federal project can continue. NEPA
requires that the relevant federal agency “study, develop, and
describe appropriate alternatives to recommended courses of action in any
proposal which involves unresolved conflicts concerning alternative uses of
available resources.”
Federal courts have taken that requirement one step further when
reviewing the adequacy of environmental impact statements, requiring that agencies take “a ‘hard look’ at [the]
environmental consequences” of proposed actions.
That’s
important, because NEPA provides protections beyond those offered by mere
judicial review of agency actions.
To put that in a fisheries context, an environmental impact
statement must be prepared in connection with any new federal fishery management plan, or any amendment
of an existing plan. That provides stakeholders with a greater opportunity to
challenge fishery management plans that might not be doing enough to end
overfishing or protect overfished stocks.
A challenge could be based upon the judicial
review provisions of the Magnuson-Stevens Fishery Conservation and Management Act
(Magnuson-Stevens), which governs all federal fisheries management. Those
provisions only permit a court to set aside a regulatory action if
such action is deemed to be “arbitrary and capricious,” or otherwise
unsupported by any of the evidence on the administrative record, if the action
is illegal or unconstitutional, or if action is taken without due regard for
legally-mandated procedures. Under such standard, a court will not intervene
merely because the National Marine Fisheries Service (NMFS) failed to consider
management measures others than the ones adopted, or otherwise failed to look
at all sides of an issue.
NEPA
requires something more. A court applying NEPA standards may invalidate a
fishery management action because NMFS failed to take a “hard look” at all of
the suggested responses to a controversial issue, or because it failed to
consider a wide enough range of alternate management measures.
The trial court’s decision in Anglers’ Conservation
Network v. Pritzker provides a good example of how that works.
The lawsuit was challenged NMFS’ decisions not to require 100% observer
coverage of the trawl fishery for Atlantic mackerel, which catches significant
numbers of shad and river herring as bycatch, and not to add shad and river
herring as managed species under the Mid-Atlantic Fishery Management Council’s
(Mid-Atlantic Council) Atlantic Mackerel, Squid
and Butterfish Fishery Management Plan (Management Plan).
The
court first considered whether NMFS’ actions were sustainable under the
judicial review provisions of Magnuson-Stevens. It found that there was
substantial evidence on the record, developed at Mid-Atlantic Council meetings,
to support NMFS’ decision not to include shad and river herring in the
Management Plan, and also found that existing law warranted NMFS’ refusal to
require 100% observer coverage in the Atlantic mackerel fishery. If the court’s
review was limited to the provisions of Magnuson-Stevens, the plaintiff’s
challenge would have ended right there.
However, NEPA opened up a second line of judicial inquiry. Federal regulations adopted to implement NEPA require that, when proposing an
action, an agency must, among other things, “present the
environmental impacts of the proposal and the alternatives in comparative form,
thus sharply defining the issues and preparing clear basis for choice among
options by the decisionmaker and the public,” and “rigorously explore and
objectively evaluate all reasonable alternatives, and for alternatives which
were eliminated from detailed study, briefly discuss the reasons for them
having been eliminated.”
The court in Anglers Conservation Network v.
Pritzker found that, by failing to include an alternative that
analyzed the impact of not immediately adding shad and river herring to the
Management Plan, and by failing to explain why such alternative was not
included for detailed analysis, NMFS failed to take the required “hard look” at
the issue and so failed to comply with the relevant NEPA regulations. Thus, the
issue was returned to NMFS and the Mid-Atlantic Council for further
consideration.
The trial court’s decision was eventually overturned on appeal, for
reasons unrelated to NEPA, but the trial court’s analysis nonetheless
demonstrates the value of NEPA in a fisheries conservation context.
Unfortunately, NEPA’s effectiveness has made it a target of those who oppose, and attempt to avoid, regulations that promote conservation. Yet, until recently, efforts to weaken NEPA have not had much success.
That
changed on January 10, 2020, when the Council on Environmental Quality, at the
behest of President Trump, issued a wide-ranging regulatory proposal clearly
intended to weaken the impact of NEPA and make it easier to push through
projects that have negative economic consequences.
The Federal Register entry announcing the proposed regulatory changes
makes that clear. Changes to section 1500.1, the very first section of the NEPA
regulations, would remove existing language that refers to NEPA as “our basic
national charter for protection of the environment,” describes
“‘action-forcing’ provisions to make sure that federal agencies act according
to the letter and spirit” of NEPA, and calls for “decisions that are based on
understanding of environmental consequences, and take actions that protect,
restore, and enhance the environment.” Such language, and the values that it
communicates, would be replaced with provisions that don’t speak to
environmental protection at all.
The
theme of downplaying environmental values, and the importance of environmental
impact statements, continues throughout the proposed rules.
The current section 1502.1 states that “the primary purpose
of an environmental impact statement is to serve as an action-forcing device to
insure that the policies and goals defined in [NEPA] are infused into the
ongoing programs and actions of the Federal Government,” and declares that “An
environmental impact statement is more than a disclosure document. It shall be
used by Federal officials in conjunction with other relevant materials to plan
actions and make decisions.” That contrasts with the new, proposed regulations,
which clearly relegate environmental impact statements to the role of
disclosure documents prepared “to ensure agencies consider the environmental
impacts of their actions in decision making,” and baldly states that “An
environmental impact statement is a document that informs.” Any notion that
environmental impact statements should be used to advance NEPA’s policies and
goals would be completely stripped out of the section.
The
current effort to weaken NEPA bodes ill for American fisheries.
A weakened NEPA would make it far easier for government-supported irrigation projects to strip away
the last cold-water refuges from already endangered stocks of Pacific salmon,
and make it more difficult to remove federally-licensed dams that prevent anadromous fish on every coast from
accessing upstream spawning grounds.
A weakened NEPA would make it easier to adopt federal fishery
management plans that, like the Management Plan giving rise to Anglers Conservation Network v. Pritzker, don’t
consider the ecosystem role of forage fish when setting harvest quotas for such
species, or that permit the use of fishing gear that puts fragile habitat, or threatened species, at risk.
A
weakened NEPA is something that America’s fisheries, and its marine ecosystems,
cannot afford.
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This essay
first appeared in “From the Waterfront,” the blog of the Marine Fish
Conservation Network, which can be found at http://conservefish.org/blog/
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