Environmental impact statements are often in the news. They’re lengthy public documents that government agencies have to issue before taking actions that might cause harm to ecosystems or public health. Most often, they’re required before permitting of major infrastructure, such as sports stadiums or export terminals.
But projects can also be exempted or, as in the recent standoff over the Dakota Access Pipeline, the process can be skipped over. So where do they come from and what good are they?
In the late 1960s and early '70s, a growing conservation movement was spurred on by high-profile environmental crises. News reports of the time warned of industrial pollution so conspicuous it’s almost hard to imagine today.
In 1969, the oozing waters of Ohio’s Cuyahoga River, loaded with the wastes of petroleum distillation, famously caught fire.
At the end of that same year, a sweeping new environmental edict sailed through Congress: the National Environmental Policy Act. It directs the federal government “to create and maintain conditions under which man and nature can exist in productive harmony.”
A Bipartisan Law: NEPA
NEPA was authored and shepherded through Congress by a prominent Democrat, Washington State Senator Henry M. Jackson, and signed into law by Republican President Richard Nixon on Jan. 1, 1970.
“It was a nonpartisan thing,” said Ryan Kelly, an assistant professor at the University of Washington’s School of Marine and Environmental Affairs.
“This was a way that a Republican administration saw of serving constituents of all stripes – right? Everybody wants clean water,” Kelly said.
The National Environmental Policy Act gave rise to similar laws on the state level all over the country. Sixteen states, including Washington, have them. Washington’s equivalent is the State Environmental Policy Act, SEPA.
“And these are laws that essentially say, stop and think when you’re going to build a big project, or when you’re going to commit to some action as a government,” Kelly explains.
Specifically, government agencies have to consider whether there could be significant environmental impacts from those actions. If so, detailed analysis is required – not just of the project itself, but also of a set of reasonable alternatives. That’s what an environmental impact statement is. It can be thousands of pages long and the public has to be involved.
EIS: A Process With No Teeth
But Kelly says the funny thing is, ultimately, the law doesn’t require any particular outcome.
“It doesn’t require you pick the alternative that’s the most environmentally friendly or the least damaging. What it requires is that you put the options out on the table and you weigh them in a public way,” he said.
So, environmental impact statements are more than anything about transparency. In lawyer speak, it’s not substantive law – it’s procedural. It’s a process with no teeth.
The Early Winters Decision
That’s been codified in federal law by a case that unfolded in Washington state's Methow Valley. In 1973, developers proposed a huge new downhill ski area. Eventually known as Early Winters, the resort would be located at the base of Sandy Butte, a 6,000-ft mountain in the Okanogan National Forest.
The U.S. Forest Service prepared a 150-page environmental impact statement and gave the go ahead. Environmental groups appealed. The fight went on for decades.
“The major objections included, among other things, the impacts on the mule deer herd,” says University of Washington environmental law professor Bill Rodgers.
The area around Early Winters was important migration habitat for tens of thousands of deer. In 1989, the case made it all the way to the U.S. Supreme Court. Rodgers calls what came of that decision the ‘“kill-all-the-deer’ dictum.”
“The Supreme Court says, well, if they’ve done their studies and said they’ve looked at it, it doesn’t matter if you kill a few, many or all of the mule deer, because this is just a procedural statute,” he said. “You can kill all of the deer – all of them,” he says.
As it turned out, for economic reasons, the resort was never built. But the problem Rodgers has with the court’s interpretation remains. He says it cheapens the intention of the law, because it means that no mitigation or remedies are required under the National Environmental Policy Act.
“It’s designed to prevent severe and enduring damage to the environment. But it’s become largely a paper-pushing exercise,” Rodgers said.
EIS: A Tool For Better Decision Making
And yet, NEPA and its state-level equivalents remain some of the most vitals tools of the modern-day environmental movement and many lawyers say the process works. They use it in conjunction with other laws.
Kristen Boyles is with the public interest law firm, Earthjustice.
“The point of going through all that process is — not just doing it to do it — you’re doing it to get the information,” Boyles said. “What are the impacts of an oil export terminal on our coasts? What would be the risks of a spill? Or air pollution - or any sort of train accident?”
She says once that information comes out, most of the time, better decisions are made. Case in point: she recently represented citizens groups in Anacortes who demanded that the Shell oil refinery on March Point couldn’t side-step a full environmental review when the company wanted to add an oil-train facility. The county agreed and a draft environmental impact statement came out.
“And a week later, Shell pulled its permit and said it wasn’t going forward with the project,” Boyles said. “There was nothing magical about that timing: when Shell itself looks at the problems and harms and hoops and hurdles that there are going to be for building this kind of facility, they themselves decided it wasn’t worth pursuing.”
Shell says it was for economic reasons, not because of the environmental review. But there’s another oil refinery nearby that does have a crude-by-rail loop. The county exempted Tesoro from a full EIS process.
“The public didn’t know about it. There was no controversy. They’re operating.” Boyles said. “That’s what happens when you don’t get public attention to issues.”
Boyles says even if the process might seem bureaucratic, without it, all kinds of things could be happening secretly.
“Which is why this is so important to have these laws that let the public know what’s going on in their backyard,” she said.
The projects covered are major — things that are going to be on the landscape for decades to come, like a new stadium or ski resort or pipeline. Environmental impact statements allow the public to be in on the process before it’s a done deal. And often, through transparency and negotiation, communities see added protections or amenities to offset possible damage.
In Washington, the state Department of Ecology maintains a website where all documents related to environmental impact statements are posted – including applications for exemptions.
The President's Council on Environmental Quality, which oversees NEPA, has published a citizen's guide to the law.
This story is part of our series, "Unpacking Government."