Our lives are full of worn-out customs. Take voting on Tuesdays, for example.
Congress first endorsed this polling practice in 1845. Back then, ballots were cast only in central locations. Citizens needed time to travel to polling places. Sunday worship meant that Monday wasn’t feasible; farmers’ market day eliminated Wednesday; and not wanting to interfere too much with the rest of the work week resulted in the selection of Tuesday.
In the 21st Century, none of that thinking holds true. We vote near our homes or by mail; we certainly aren’t an agrarian-based economy; and state voting practices (despite political wrangling) offer choices beyond traditional Tuesdays. Yet, national elections are still held on Tuesdays early in November and it appears to be stuck that way, even at the expense of broader citizen engagement.
NEPA practice follows this same trend, often at the expense of efficient consideration of major infrastructure development. People are too vested in the CEQ regulations and other NEPA procedures, as if they could never be modernized or improved.
Without further ado, here are three candidates for the obsolete library shelves:
- The Final EIS – agencies definitely should respond to comments on a Draft EIS. But the notion of producing yet another volume is needlessly time-consuming and, even worse, diverts attention from items that may have been updated or changed since publication of the Draft.
- Clean Air Act Section 309 – This provision compels EPA to “grade” every EIS. How has that evolved? The agency gives virtually every document the same grade (talk about a bell curve) and raises virtually the same issues. In one region that won’t be identified, an EPA comment letter mistakenly forgot to change the name of the project at issue! The letter was virtually identical to comments on an earlier EIS that, coincidentally, I had helped defend for a different client. Freed of this unnecessary administrative task, EPA should simply comment on the project at hand, and not repeat general policy objectives.
- The Six-Year Statute of Limitations – In the transportation sector, MAP-21 reduced the statute to 150 days. That’s more than enough time to file a complaint. For any project facing potential litigation, parties generally have commented and objected extensively during the NEPA process. Flipping those objections into a complaint is easy. The internet is full of sample APA complaints. Project proponents deserve certainty and courts should review an administrative record before agency analysis gets stale.
None of these changes would diminish NEPA’s integrity.
While we’re at it, how about ditching Daylight Savings Time?