Wednesday, June 3, 2009


Dear Readers,
I felt the following important enough to usurp my usual position on my blog.
Please study Mr. Pendley's call to action, then call your elected official.
Thank you,

By Perry Pendley
Mountain States Legal Foundation

On New Year's Day 1970, President Richard Nixon signed into law the National Environmental Policy Act (NEPA), the purposes of which, among other objectives, were to "encourage productive and enjoyable harmony between man and his environment [and] stimulate the health and welfare of man." NEPA's most significant single provision was its requirement that federal agencies prepare an environmental study whenever any proposal for "major Federal action[]" would "significantly affect[] the quality of the human environment," in essence, the workshop equivalent of "measure twice, cut once."
Unfortunately, in the nearly 40 years since its enactment, NEPA has become the weapon of choice for groups and judges to kill activities of which they disapprove. It is not just that NEPA has killed major projects like oil refineries, nuclear power plants, and pre-Katrina improvements to New Orleans' levees; it also has delayed and thus killed salvage of fire-damaged timber, transfer of a rig from one drilling site to another, and movement of cattle to a different grazing location. Three NEPA cases now in court provide new evidence of NEPA's pernicious effects.
In 1997, natural gas was discovered on a Bureau of Land Management (BLM) lease in New Mexico. Over the next eight years, the BLM produced thousands of pages of documents, received hundreds of comments, and held scores of meetings and hearings. In January 2005, it issued an oil and gas plan that allows a maximum surface disturbance of only 1,589 acres in Otero and Sierra Counties from well pads, roads, and pipelines-less than one-tenth of one percent of the total surface area. Because only 141 exploratory wells could be drilled with no more than 84 producing wells, the plan was the BLM's most restrictive ever. Nonetheless, neither environmental groups nor Governor Bill Richardson was satisfied; they sued. Last month, the U.S. Court of Appeals for the Tenth Circuit held that the BLM had not taken the "hard look" that NEPA requires and sent the BLM back to the drawing board.
In 2008, in the wake of the Supreme Court's ruling in District of Columbia v. Heller, as to the right "to keep and bear arms," and following a request from 51 Senators, the National Park Service (NPS) adopted a new rule regarding the possession of guns in parks and wildlife refuges. That rule-like those of the U.S. Forest Service (USFS) and the BLM-provides, in accordance with principles of federalism, that state law determines whether park visitors may possess guns. Anti-gun groups sued, claiming that the NPS should have conducted a NEPA study to assess the environmental impact. The NPS argued that there was no environmental impact, hence no NEPA requirement. The judge ruled that, because guns will be used for "self-defense against persons and animals," the NPS's rule "will obviously have some impact on the environment, whether direct, indirect, or cumulative." The NPS was sent packing.
In the Allegheny National Forest in northwestern Pennsylvania where oil and gas activity is underway on privately owned resources beneath the federal surface, environmental groups filed a "sweetheart lawsuit" to require the USFS to do a NEPA study when an oil and gas company advises the agency that it is operating in the forest. Notwithstanding that the agency, like every other surface owner, can do nothing short of a lawsuit to deny oil, gas, or mineral owners access to their property, the USFS appears to have concluded that the mere receipt of the notice-as to which it has no discretion and can take no action-is "major federal action[]" and triggers NEPA. A recent ruling by the Supreme Court of Pennsylvania reaffirming the property rights of oil and gas operators should have ended the USFS's plans; instead, the agency says it will prevent all oil and gas activity.
What NEPA needs now is an intervention by the U.S. Supreme Court; whether the Court will take such a case remains to be seen.
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