Federal agencies’ abuse of NEPA can only be stopped if land users are willing to fight for their right to use and access public lands.
The federal government has passed dozens of laws, regulations, rules, executive orders and mandates over the past 50 years for the intent of protecting the environment and wildlife.
One of the many, many laws that citizens must abide by is NEPA, the National Environmental Policy Act of 1969. NEPA requires federal agencies to conduct a process of analysis and public feedback on projects that will impact the environment.
NEPA applies to all federal agencies within the executive branch such as the Bureau of Land Management, U.S. Forest Service, National Park Service and the Environmental Protection Agency just to name a few.
For Southern Utah residents surrounded by federal land, NEPA is an ever-present process all around us and something people should be aware of. Anytime grazing AUMs are reduced, grazing improvement projects are proposed, or when mining, drilling or road-building is happening, the NEPA process is legally required.
Southern Utah has been bullied by land agencies and environmental groups, via NEPA, for years because environmentalists understand the process and have manipulated it to their advantage. It is time to stop our culture and heritage from being bulldozed by this law through reductions of AUMs, establishment of overlapping wilderness areas and other designations that restrict citizens from accessing and using this shared land.
But in order to stop this abuse of power, we must first understand the law as well as the environmentalists do.
How NEPA Works
The NEPA process consists of a varying number of steps, depending on the agency and project. One issue with NEPA is that the steps can change from one project to another, which discourages the American people from being involved. Inconsistencies make NEPA confusing and frustrating to participate in.
The process contains a few public comment periods, which each have a hard deadline. Comment periods can last between 15 days and 90 days, and sometimes extensions are granted. Members of the public who fail to comment during the comment period lose their legal standing for litigation after decisions are made.
These are the steps in the NEPA process:
- Notice of Intent/Pre-scoping: Federal agencies will publish in the official Federal Register that they are planning on starting NEPA for a specific project like a national monument Resource Management Plan (RMP) that will dictate how the land can be used. Sometimes, the agency will ask for “pre-scoping” comments from the public.
- Scoping: This is typically the first step in NEPA. Agencies will generally give a broad idea of the project’s “purpose and need” and ask the public to give feedback.
- Draft/EA/EIS: Unless the agency determines the project will have no significant environmental impact (under a “categorical exclusion”), the agency will use the comments provided by the public and special interest groups and draft one or more “alternative” plans to accomplish the project’s purpose. One of the alternatives will be defined as the agency’s “baseline” alternative as a comparison to the other proposed alternatives. They may also identify which alternative they prefer. Then the agency will assess the environmental impact of each alternative by ordering an Environmental Assessment (EA), or a more-intensive Environmental Impact Statement (EIS). Oftentimes environmental groups will sue the agency, arguing that the particular project should have had an EIS completed rather than an EA.
- Decision: This can be implemented through multiple steps depending on the degree of impact from the proposal and may also allow for more public comment.
- Objection/Protest: You cannot submit an objection (to the USFS) or protest (to the BLM) to a decision that has been made unless you had previously submitted a comment during a public comment period.
Weighing Alternative Plans
As part of the process, agencies are required to show a broad range of alternatives when undertaking the NEPA process. In order to adequately comply with NEPA, agencies must have alternatives that explore a range of possibilities that meet the project’s purpose and need. These alternatives are usually sorted between the most restrictive “conservation” alternative to the alternative that is the most open to access and usage.
Over the years, agencies have conditioned themselves to believe that they must never expand or enhance recreation access through the planning processes, but this is an inherent and fundamental flaw of this process and a violation of NEPA. Inside land governed by a multiple-use mandate, this inequitable privilege of one stakeholder’s interest over the interests of other stakeholders taints the integrity of the process.
Agencies are required to select an alternative that will achieve the purpose of the project, but the current administration has an impact on this decision. The project’s purpose is almost never to restrict use, but that is the unspoken goal of the agencies at this time.
This process is going on all the time, but the vast majority of people these decisions affect are not even aware. The process is drawn out and can take years and even decades to complete. Therefore, unless it is your full time job, it is nearly impossible for the average American to be aware of what is happening and engage from start to finish. Because of the inefficient and bureaucratic process, NEPA disenfranchises the American people from participating, which is the exact opposite of its purpose.
The Grand Staircase RMP
Comment periods and NEPA are happening in Wayne, Piute and Garfield every year with most people unknowing. Currently the BLM is updating the Resource Management Plan (RMP) for Grand Staircase-Escalante National Monument. GSENM is currently operating under the RMP for the reduced boundaries.
The new proposal is a broad and massive plan that will designate how other plans and uses operate within the monument boundaries. There is also travel management planning, business planning, visual resource planning and a plethora of other bureaucratic planning processes that are ongoing. The types of plans will vary between the Bureau of Land Management, U.S. Forest Service, National Park Service and other agencies.
Agencies can spend years going through NEPA, gathering public comments and preparing documents. In the fall of 2022, the BLM initiated Scoping for the GSENM plan, held public meetings and gathered public comments. Just a few weeks ago the BLM started the next step of public comments which is releasing the draft EIS. Comments on this draft will be accepted until November.
The BLM will be required to read every public comment and use that feedback to develop a final EIS. This will probably take six months to a year — a short period — because the current administration is trying to push this management plan through before the next presidential term. Comments will be taken on the final EIS, and then a Record of Decision (ROD) will be issued.
After that, parties who participate throughout the planning process can file a protest, which can set the stage for litigation. Environmental groups sue over any plan that does not align with their values. This is why agencies so often bend to their will.
Locals Need to be Engaged
Locals have frequently complained that the agency has already made up their mind what they are going to do with the monument RMP, and that submitting public comments doesn’t matter. Yes, for a high-profile management plan such as for GSENM, BLM Director Tracy Stone-Manning is calling the shots and knows what she wants to do. For this administration, this is a political game and NEPA is just a formality. This was clear when signage was placed on the monument before the draft RMP was released and through the restrictive alternatives they are considering.
The GSENM RMP is more of a political statement than a plan. But for most other projects subject to NEPA, this isn’t the case.
During an interview with former Secretary of the Interior David Bernhardt, Bernhardt recounted situations in which comments did in fact change the minds of decision makers. He added that commenting isn’t just for the sake of trying to get what you want, it’s much bigger than that.
Environmental groups such as the Sierra Club, SUWA and a number of other groups have their members submit thousands of comments, usually as form letters. Historically, these groups are bending the arms of the agencies. But locals showing strong public support or protest to a project does in fact matter because agencies are worried they will get sued, as they so frequently are by environmental groups.
Comments also help establish standing for future protest or litigation, if necessary. Environmental groups are winning left and right because they are so engaged in the process. If we choose not to engage during NEPA, then we aren’t even in the game.
Public comments are the only way to have legitimate standing to challenge the decisions of these agencies. Environmental groups have learned this and have perfected controlling the administrative state through threat of litigation.
It’s time other public land users take a page out of this playbook and engage in NEPA. It’s time the locals show up with a voice as strong as the voices of the Sierra Club. It’s time locals stand up to the bullying.
If SUWA and other groups spend so much of their time in courtrooms working to remove the rights of the American people, we should also be there to protect those rights. Your property taxes are affected, your livelihoods are affected, your children are affected. Whether you are a rancher, miner or property owner on public lands or not, this affects you. Protecting long-held rights to use and access our public lands will only be possible if locals start learning how to play the game.
– by Simone Griffin