Costs, benefits of NEPA reviews tough to pin down -- GAO

E&E News
By Phil Taylor
April 15, 2014

Federal agencies do not consistently track the costs, timelines and types of environmental reviews they conduct, and their benefits to society are difficult to quantify, according to a new report from the Government Accountability Office requested by Republican and Democratic lawmakers.

In addition, while legal challenges to environmental reviews can be costly, most reviews are not taken to court, and of those that are, the government wins most of the time, GAO found.

The 42-page report took a microscope to the National Environmental Policy Act, the law signed in 1970 by President Nixon that is heralded by environmental groups but under constant fire from Republicans and industry groups that argue it clogs the federal bureaucracy.

Rep. Rob Bishop (R-Utah), chairman of the Natural Resources Subcommittee on Public Lands and Environmental Regulations, requested the report in early 2013 along with the Republican chairmen of four other committees (E&E Daily, Feb. 8, 2013). Democrats requested the report be expanded to examine the benefits of NEPA.

Bishop this afternoon said he remains concerned over the economic costs of NEPA and its use as a "litigious weapon" to block development. He said the report will be invaluable as his committee seeks "solutions" to the law's shortcomings.

"This report substantiates concerns that the federal government has no system to track time or costs associated with NEPA, which is one of the most expansive regulatory laws in the country," Bishop said in an emailed statement. "The findings of this report are not insignificant and deserve to be given considerable attention and oversight moving forward."

But environmental groups and many Democrats argue NEPA is a critical bulwark against rushed government decisions that can lead to ecological harm or threats to public safety. Moreover, federal officials told GAO that public input under the law can lead to better projects.

"NEPA gives the public a chance to engage their government in the democratic process, it holds the government more accountable, and it ultimately makes federal projects more efficient, which saves agency time and taxpayer dollars," said Rep. Peter DeFazio of Oregon, the top Democrat on the Natural Resources panel. "NEPA isn't perfect, but this report confirms that it is working and that the benefits far exceed the minimal cost."

The law requires agencies to disclose to the public the impacts of projects they fund or permit, with reviews ranging from a dayslong categorical exclusion (CE) to lengthier environmental assessments (EA) or multiyear environmental impact statements (EIS), depending on the significance of the project's impacts.

While agencies do not routinely track the number of each type of NEPA review, the White House Council on Environmental Quality estimated about 95 percent of NEPA analyses are CEs, fewer than 5 percent are EAs and fewer than 1 percent are EISs.

However, that breakdown varies by agency, with the Forest Service estimating that out of the 14,574 NEPA analyses it performed from 2008 to 2012, about three-fourths were CEs, 20 percent were EAs and 2 percent were EISs.

EISs appear to be performed most frequently by four agencies -- the Forest Service, Bureau of Land Management, Federal Highway Administration and U.S. Army Corps of Engineers -- which accounted for 60 percent of the EISs in 2012, GAO said, citing the National Association of Environmental Professionals.

The costs of these reviews also vary wildly and are not consistently kept, GAO said. For example, many NEPA reviews are paid for by the companies applying for a permit. What they pay third-party contractors to conduct those reviews is often confidential, GAO said.

In addition, the Forest Service in 2007 reported that it is "very difficult to track the actual cost of performing NEPA," since staff members who are involved work on a variety of other tasks and are funded by a large number of budget line items.

But the Energy Department, for example, did report that from 2003 to 2012, the average payment it made to a contractor to prepare an EIS was $6.6 million. Payments ranged from $60,000 to $85 million, with a median cost of $1.4 million.

The only governmentwide estimate was performed in 2003 by a CEQ task force, which put the average cost of an EIS from $250,000 to $2 million. An EA, the task force found, typically costs from $5,000 to $200,000.

According to the National Association of Environmental Professionals, the time to perform an EIS increased by more than a month each year from 2000 to 2012.

The group a year ago concluded that the 197 final EISs issued in 2012 took an average of 4.6 years to perform, the highest average time the group had recorded since 1997.

EIS timelines typically begin when an agency submits a notice of intent in the Federal Register -- initiating public scoping -- and end with the publishing of a final EIS.

GAO said less information was available on the time to complete EAs. DOE reported an average of just over a year, but Interior's Office of Surface Mining reported an average of four months and the Forest Service reported an average of 18 months.

While the benefits of NEPA are difficult to quantify, GAO noted benefits in improving transparency and public participation "and in discovering and addressing the potential effects of a proposal in the early design stages to avoid problems that could end up taking more time and being more costly in the long run."

The number of lawsuits filed under NEPA declined after its early years of implementation and is now steady, GAO said. According to CEQ, the government prevailed in more than half of the cases from 2008 to 2011.

GAO also cited a report published this year in the Journal of Forestry that found the Forest Service won just over half of the lawsuits filed against it over the past two decades. The agency was more likely to lose or settle cases over the past several years, the report found (Greenwire, March 11).