Finley gets ink
Rick Smith
February 8, 2018
The Magna Carta Of American Environmental Law Is Under Siege
Few Americans may know of the National Environmental Policy Act but it affects their lives every day
The Berkeley Pit in Butte, Montana, headwater for one of the largest and most costly Superfund cleanup sites in America and product of unregulated industry. The rising water in the pit, which rests astride Butte, is so toxic with the mining wastes of copper that migratory waterfowl dies when landing upon it and drinking its lethal stew. Congress is moving to relax NEPA regulations pertaining to clean air, water and carbon emissions.
When navigating the wild backcountry, do you think it prudent to look before you leap?
In business and government, especially with public land management decisions applying to the more than 640 million acres of lands American citizens own, this concept is also known as the precautionary principle and it is all about assessing risk in order to avoid injury, illness, death or other costly unintended downsides.
In the Greater Yellowstone Ecosystem, the wildest complex of public lands in the Lower 48 distinguished for its large wildlife populations found nowhere else, it means trying to better assess the potential impacts of particular actions. Not merely individual activities done in isolation from one another, but grasping their cumulative effects.
The Greater Yellowstone Ecosystem would not be in the condition it is today without previous generations heeding the wisdom of the precautionary principle.
Yet only in the mire of the current political climate could it become vogue to commit less than due diligence in scrutinizing risk by hobbling the ability of government agencies to be responsive, or to flat out instruct those in charge to simply look the other way and hope for the best.
Part of the precautionary principle involves placing a burden of proof on those who are proposing to exploit public lands for personal benefit and making them demonstrate that such uses will do no serious harm or at least identify implementable options for minimizing them.
Claiming ignorance—that one didn’t know better—worked well in the past but it came with a tremendous toll. To invoke the look before one leaps analogy again, it makes as much sense as a mountaineer rappelling with a fixed length of rope over an unexplored cliff yet not knowing if it will deliver you to the next ledge.
In federal law, the tenets of the precautionary principle are not abstract. They were actually codified when a group of politically moderate lawmakers came together in the radical center and placed a forward-thinking law on the desk of a Republican president.
On January 1, 1970, Richard Nixon signed the National Environmental Policy Act which compels land managers to be accountable, transparent (not making deals in backrooms), to let sound science be a guide, to acknowledge in a forthright way what they don’t know, and to not do things by the seat of their pants or at the whim of political pressure or intimidation.
Even on a U.S. Department of Energy website, one that hasn't yet been scrubbed by the Trump Administration, NEPA is referenced as “the Magna Carta” of environmental laws, the one that laid down the foundation, in fact, for all modern environmental laws in the land; laws that have safeguarded the health of millions of people, brought species back from the brink, ensured that water flowing from the tap is safe to drink and air good to breathe, that kids weren’t ingesting lead paint or being exposed to toxins, and that acid rain isn't killing forests and lakes.
Point of fact, the kind of environmental protection that has resulted from NEPA has been a boon for the economy and laid down a bedrock for conscientious capitalism to thrive.
Drafting of NEPA came after years in which bureaucrats and politicians stood accused of keeping the public locked out of decision making and placing the financial interests of powerful, politically-connected private interests ahead of the interests of society. In fact, Theodore Roosevelt railed against such abuse of power when he was president at the dawn of the twentieth century.
NEPA is considered the most forward-thinking environmental protection law in the world.
Read that line again. It is one of the laws that has made America a great nation. Many consider it almost like an amendment to the U.S. Constitution. A notable preamble to the nuts and bolts of NEPA is found in this declaration. Take a deep breath before you read it aloud but know the words command more potency when spoken:
"The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man….
…..declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans."
“Citizens need to stop being passive. They need to put pressure on their elected officials, letting them know they are aware that selfish interests and greedy gluttons are pushing an agenda that is not in their best interests or that of their children’s best interests and they are not going to stand for it anymore. What does America desperately need? There needs to be a #MeToo movement started for the environment.” —Michael V. Finley, former top-ranking National Park Service official, president of major environmental philanthropic organization and current chairman of the Oregon Fish and Wildlife Commission
The gist of NEPA is this, and it’s why citizens need to be paying attention now: Not only do Americans have a right to be protected against land management and business activities that might impair the environment, but they are granted a right to be stakeholders in telling the government how they want lands the public owns to be managed.
In its 48 years, NEPA’s greatest achievement is it gives the public a voice they didn’t have before, says Timothy Preso, a nationally-noted environmental attorney who works for EarthJustice in Bozeman, Montana. It makes NEPA a touchstone of our democracy, he explains, analogous in many ways to our right to vote and carry a gun.
Not only do citizens have the right to defend their health, but they have a legal hook for pushing back against environmental despoliation. When NEPA became law, it created the White House Council on Environmental Policy and the law required custodians of public resources to conduct environmental reviews—Environmental Impact Statements for complicated proposals and Environmental Assessments for minor things.
Preso notes that contrary to how NEPA detractors have mischaracterized its effect, as being a law only of value for liberal, lefty environmental do-gooders, its actual intended purpose is to reflect all sides of an issue. He points out that the timber industry invoked NEPA to challenge protection of Forest Service roadless lands which serve as a catchment basin for water reaching tens of millions of Americans at their taps. “Public involvement through NEPA is a right Americans have that has been hard won,” Preso says.
Today, there are several efforts underway in Congress to weaken or gut key provisions of NEPA, part of a larger fusillade of more than 150 overt and more insidious attempts at evisceration. Why does watchdog journalism matter? It matters because journalism is one of the only mechanisms for bringing these maneuvers to light.
Today, there are several efforts underway in Congress to weaken or gut key provisions of NEPA, part of a larger fusillade of more than 150 overt and more insidious attempts at evisceration. It’s safe to say that President Trump has little grasp of what NEPA is, or how and why it came on the books.
If attempts at weakening or abolishing NEPA's implementation are successful, experts say, it will result in resetting the clock backward on environmental protection. It’s safe to say that President Trump has little grasp of what NEPA is, or how and why it came on the books. Note: Mountain Journal sent several emails to the Interior Department and Trump Administration requesting comment but received no reply.
As noted, the effort to make the precautionary principle a centerpiece of NEPA did not come about by accident, but by historic trial and error. Americans across the country realized that if agencies aren’t required to think and plan ahead and hold resource extraction industries to account, disaster can strike.
In Appalachia, there are catastrophes involving mountain top removal of coal and ruination of watersheds (to say nothing of the legacy of black lung). Coastal dwellers have dealt with oil spills—ask residents of Santa Barbara, California about the spill of 1969 or Alaskans about Exxon Valdez or Louisianans about Deepwater Horizon. Ohioans remember when the Cuyahoga River caught fire, and New Yorkers when GE dumped dioxins into the Hudson River.
In 1969, Ohio's Cuyahoga River was so full of toxic industrial waste and flammable chemicals it burned and required firefighters dousing it with water from water hydrants to put the fires out. The same year a massive oil spill occurred off the coast of Santa Barbara, California, resulting in passage of NEPA, creation of the EPA and the Clean Water Act. Several different Trump Administration initiatives, coupled with bills in Congress, would weaken the review process of proposed industrial activity, especially oil and gas drilling and mining for coal.
In towns coast to coast, there was sickness that resulted from gas stations not being required to use leak-proof liners. Rivers were used as sewage disposal systems for municipalities and industrial agriculture, public forests were being treated as taxpayer-subsidized tree farms, smokestacks were linked to outbreaks of asthma, mercury, and arsenic poisoning.
Something else momentous happened the same year that NEPA was enacted. A new federal agency was created by executive order with the stroke of Nixon’s pen—the U.S. Environmental Protection Agency. The EPA’s first administrator was attorney William Ruckelshaus, a Republican, who had peerless ethical integrity and who even refused to condone Nixon’s behavior four years later when the president famously carried out the infamous Saturday Night Massacre in an attempt to thwart the Watergate Investigation that eventually would drive Nixon from office.
Today there is an environmental policy institute named after Ruckelshaus at the University of Wyoming, which itself is filled with irony that I’ll explore in future columns.
NEPA has a special connection to the EPA, for the law gives the agency heft in enforcing the Clean Air and Clean Water acts and in recent years it has employed NEPA to consider the consequences of fossil fuel companies, automobiles and coal-fired energy plants sending carbon dioxide into the atmosphere contributing to human-caused climate change.
One of the first things President Trump did was sign an executive order cancelling an executive order implemented by his predecessor which had instructed federal resource agencies to study climate change, consider climate change in management decisions, make plans for adaptation, and generally coordinate across the boundaries of bureaucratic fiefdoms.
In its place, Trump’s executive order established this new priority: “The heads of agencies shall review all existing regulations, orders, guidance documents, policies, and any other similar agency actions (collectively, agency actions) that potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy resources. For purposes of this order, “burden” means to unnecessarily obstruct, delay, curtail, or otherwise impose significant costs on the siting, permitting, production, utilization, transmission, or delivery of energy resources.”
The move was immediately applauded by western lawmakers such as U.S. Sen. John Barrasso, a medical doctor from Wyoming, and colleague U.S. Sen. Steve Daines from Montana. It's frankly almost impossible to keep track of all the pieces being advanced through House and Senate committees and subcommittees.
On January 28, 2018, the House Natural Resources Committee chaired by Rob Bishop of Utah, issued a press release praising legislation that would rapidly ramp up oil and gas drilling on public lands and coastal areas. Notably, earlier in January after Trump announced a sweeping change that would clear the way for more offshore drilling by rescinding Obama-era regulations, he backtracked in deciding to exclude Florida where he has a home in Palm Beach, Mar-a-Lago, and where Republicans protested.
BP's Deepwater Horizon drilling platform disaster which started on April 10, 2010 and leaked 3.19 million barrels of oil into the Gulf of Mexico across 87 days, caused $62 billion in damages and clean-up costs. It is by far the worst oil spill in U.S. history. Photo courtesy NOAA
A short while later, a political appointee in the Interior Department, David Bernhardt, circulated a memo that said, going forward, environmental impact statements, regardless of proposals being examined, “shall not be more than 150 pages or 300 pages for unusually complex projects” in order to reduce review to a year. The message: if there’s too much science or not enough that should necessitate the need to gather more information, it won’t be considered. Of course, while Interior claims its intentions are pure, there are bills advancing in Congress that create areas of categorical exclusion for NEPA where local federal land managers can, of their own discretion, decide intense review isn’t required and citizen involvement not allowed—which is exactly how management used to be done prior to NEPA.
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In the West today there are tens of thousands of river miles sullied by hardrock mining wastes because the precautionary principle was never applied. There are underwater aquifers that have been contaminated. There are huge stretches of public lands that, while management is supposed to be “multiple use,” are actually single use because one activity trumps the rest.
Had NEPA been in effect, the odds are great that one of the nation’s largest environmental disasters—the federal Superfund site born of the Copper King era and extending from Butte, Montana to Anaconda and down the course of the Clark Fork River—might never have reached such epic proportions.
Prior to NEPA, many land management decisions were focused primarily only on short-term economic considerations and yet U.S. taxpayers have been stuck paying billions upon billions of dollars to fund expansive cleanups after companies walked away from their responsibility or never completed what they claimed they would do.
Again, while it is safe to suggest the President is not conversant about NEPA, his cabinet-level lieutenants are, certainly Interior Secretary Ryan Zinke, EPA Administrator Scott Pruitt, and Agriculture Secretary Sonny Purdue.
One important area of categorical exclusion would allow Forest Service managers to authorize small-scale clearcut logging operations—no limit to the number— if they believe they might possibly reduce wildfire risk. A House bill would allow local forest supervisors to invoke special categorical exclusions for NEPA review and public involvement involving salvage logging of burned trees and proposed "fuel reduction projects" of up to 10,000 acres while a Senate version would allow review to be skirted in projects up to 6,000 acres.
Both of those proposals attracted condemnation from two nationally-respected ecologists Norm Christensen and Jerry Franklin. The legislation would ... exempt the Forest Service from analyzing cumulative environmental effects of multiple categorical exclusions projects in the same vicinity, violating fundamental ecological principles of sound public forest management on issues of scale, context and need," they wrote. "These exemptions from environmental law are an aggressive legislative assault on our national forests and public participation."
Another autocratic decision by the Interior Department involves a sweeping change to the federal Migratory Bird Treaty Act allowing oil and gas companies to kill birds, a move made by Interior Secretary Ryan Zinke on behalf of the oil and gas industry.
Prior to passage of NEPA, the U.S. Forest Service, bowing to political pressure from the timber industry, approved clearcuts on national forests that not only wreaked environmental havoc but trees were given away at pennies on the dollar, roads built to pull the logs out were subsidized by taxpayers and the public got stick trying to rehabilitate traumatized landscapes and the species living in them. NEPA changed that but now members of Congress are pushing through legislation that would give local forest managers discretion, without being subjected to rigorous public review, to cut trees if they think it might prevent wildfires.
Another rhetorical front that’s been advanced is requiring federal agencies to give more priority to any short-term economic benefit generated by resource extraction over the concerns of environmental protection. One aspect of NEPA that has direct relevance for millions of urban Americans is the scrutiny it allows of siting chemical and smokestack manufacturing plants in the backyards of poor people who disproportionately have borne the brunt of pollution because they tend not to possess the means to battle large companies with political connections.
Why do NEPA and the precautionary principle matter to Westerners, to all Americans? Why do you want government officials to be held accountable?
If, say, a natural gas company wants to start fracking coalbed methane near your property, punching holes into the underground aquifer from which you derive your drinking water, it’s wise to know first whether the activity could cause harm to this essential resource vital to the health of you and your family.
In many cases, environmentalists note, NEPA compliance even without weakening the law has been dubious. Consider Bureau of Land Management review pertaining to companies desiring to cover tens of thousands of acres of public land with hundreds or thousands of natural gas wells, roads, pumping stations, pipeline and other infrastructure in the Jonah Field and Pinedale Anticline., Part of the precautionary principle in NEPA would have vigorously assessed whether it would detrimental to, say, public wildlife such as pronghorn, sage-grouse, mule deer, elk and other animals?
Even former Wyoming Gov. Dave Freudenthal condemned the federal review process that resulted in the Jonah Field becoming a sacrifice zone for wildlife.
By law, the Bureau of Land Management was supposed to do a detailed cost-benefit analysis on proposed natural gas drilling in the Jonah Field south of Pinedale, Wyoming. Far from achieving "balance" that recognized the habitat needs of pronghorn, mule deer, sage-grouse and other species, the BLM permitted intensive development that even Wyoming Gov. Dave Freudenthal described as an environmental sacrifice zone and "an example of what not to do in the future." This was done with NEPA in effect. What will a weakened law mean as the Trump Administration aggressively moves toward removing any regulations that are perceived to be burdensome to industry while covering the West with thousands of more wells? Photo courtesy Ecoflight
Or consider the Wyoming Game and Fish Department’s applications for permits to operate controversial elk feedgrounds on Forest Service lands, with there being well documented risk for spreading deadly chronic wasting disease and other pathogens to wildlife. The precautionary principle suggests it isn’t smart to dismiss the concern and simply pray something bad doesn’t happen.
Or, as a more recent phenomenon: the Forest Service greenlighting the proliferation of recreation uses (including its condoning of illegal trespass) without actually knowing what the impacts will be for sensitive wildlife and habitat security, especially as said uses swell in number of participants, intensity and conflicts.
The Trump Administration’s proposals to roll back and streamline regulations in the name of achieving better efficiency on the surface sounds reasonable to some, but experts warn that the net effect will be steamrolling over environmental compliance stipulations adopted for compelling reasons.
Notably, some of the fiercest attackers of NEPA have been lawmakers who receive contributions from the fossil fuel industry, including companies that have waged deliberate attempts to silence scientists. They characterize the law as being excessively onerous, riddled with red tape requirements, too costly and too burdensome to agencies having to comply.
Here is s common pattern: an agency, coming under political pressure, will issue a decision that does not address issues consistent with the precautionary principle. Then a group will sue, a judge will agree that a decision was made arbitrarily and capriciously and so the agency must go back to the drawing board.
Routinely, members of Congress hostile to NEPA attack the law, judges and environmentalists. They claim there has been a pandemic of lawsuits when the facts actually suggest otherwise and facts show that often industry brings lawsuits too.
For decades, officials at all levels of government refused to confront growing evidence that hundreds of residents in Libby, Montana were getting sick or dying from asbestos-related lung diseases caused from exposure to particles at a local vermiculite mine. Ultimately, a subsequent owner of the mine, W.R. Grace was acquitted of responsibility for the human-caused disaster but the verdict did not resolve the question of who is to blame. NEPA is one law to prevent such disasters from happening.
Seldom do lawmakers acknowledge that NEPA safeguards the quality of life of their constituents and yet when disaster strikes they blame government ineptitude. Two factors hobbling NEPA compliance in recent years have been lack of adequate staffing to conduct reviews and cutbacks to scientific research.
One of the federal agencies on the front lines of NEPA compliance is the U.S. Fish and Wildlife Service. Former Director Dan Ashe, who held the position during the Obama Administration, navigated NEPA through species listing and delisting decisions, oil spills, river clean ups, habitat protection and on numerous other fronts.
“We are seeing efforts to curtail under the guise of deregulation. Sure, as an administrator you can be frustrated at times when you lose on process issues in court that seem wasteful of limited financial resources,” Ashe said. “But what people like to say is that American government is by the people and for the people. And NEPA is a law for the people. Citizens should have a right to challenge their government. If you can take on the Fish and Wildlife Service and win in court, given the number of talented lawyers with the agency and at the Department of Justice, then you probably have a point. NEPA keeps you smart as a public servant.”
Ashe says that attempts by the Trump Administration and Congress to hurry decisions is wrongheaded. “Some decisions require time to think and there are plenty of examples when not enough thinking went into decisions,” he explains, citing the Kissimmee River in the Everglades of Florida. “We took out all of the bends in the river and caused a lot of ecological harm and four or five decades later we are spending hundreds of millions of dollars to put the bends back. Without NEPA you can make these kinds of mistakes everywhere if you’re not careful. The law has done a lot good and it has allowed us to avoid calamities in the environment through rash thinking.”
Ashe noted another ripple effect of unilateral actions by Zinke and Pruitt. “There is definitely some deep frustration within the ranks of the Fish and Wildlife Service. The policies of this administration have led to a collapse of morale. Good people are leaving. I talked to another senior person just today who is contemplating departure,” Ashe said. “To have an Administration that seems to have no respect for science and seems so willing to say things that are just uninformed is troubling.”
During an interview I had with Bill Ruckelshaus a few years ago, he expressed his dismay that Republican members of Congress who were trying to weaken NEPA and the EPA. In a recent interview with The Huffington Post, the 85-year-old Ruckelshaus again spoke out against the Trump Administration's attempts to mute science. ““If your position is, ‘I don’t believe the science, therefore I’m going to get rid of all the scientists studying this, and let’s not mention it in any public announcement,’ that’s just crazy,” Ruckelshaus said. “What you want to do is more science.”
“If your position is, ‘I don’t believe the science, therefore I’m going to get rid of all the scientists studying this, and let’s not mention it in any public announcement,’ that’s just crazy." —William Ruckelshaus, former chief administrator of the U.S. Environmental Protection Agency.
There is one aspect of public land management where Congress has been generous. It has allocated funding so that agencies like the Bureau of Land Management can rapidly expedite as many oil and gas drilling permits as possible, though they haven’t bolstered the biology staffs.
EarthJustice’s Preso says the answer is not merely allocating taxpayer money so that agencies can process more resource extraction permits, it is to fully fund agencies and their science programs so that they have the data they need. This would go a long way toward expediting decisions, proposing mitigation to reduce damage or outright tell companies their plans are being rejected, which saves it time and money.
Having a clean and healthful environment, for people and wildlife, is not a mere privilege, Preso notes. It is a right and when NEPA was written, Republicans and Democrats saw its provisions as an important part of representative democracy.
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Michael V. Finley has, one could argue, impeccable credentials in understanding what is at stake with an assault being waged on environmental protection that he says is unprecedented in history. Finley has been involved with public policy and natural resource management for 47 years.
He spent more than three decades rising through the ranks of the National Park Service as a devoted civil servant. He prestigiously is the only senior Park Service employee in modern times to have served as the superintendent of “the Big Three” national parks—Yellowstone, Yosemite and Everglades. He served under six different presidents.
In 2000, he left to become president of the Turner Foundation, the private philanthropy entity established by Ted Turner, and through that role worked with thousands of companies, non-governmental conservation orgranizations and government agencies trying to advance sustainable environmental stewardship.
Mike Finley, former superintendent of Yellowstone, Yosemite and Everglades national parks, presides as chairman over a meeting of the Oregon Fish and Wildlife Commission. Finley also served as president of the Turner Foundation and worked with companies, citizen groups, government officials and recreation interests to promote sustainable conservation practices. While with the Park Service he was one of the most decorated civil servants in government.
Most recently, Finley, a lifelong hunter, angler and outdoor recreationist, has been chairman of the Oregon Fish and Game Commission. In every aspect of his career, he has observed the vital role that NEPA plays. As a senior civil servant he was obligated to carry out numerous Environmental Impact Statements and Environmental Assessments, including documentation on everything from trying to restore the Everglades to wolf restoration, bison management and battling the New World Mine in Yellowstone to addressing overcrowding and smog problems in Yosemite Valley.
“NEPA protects what’s in front of us now and it serves as our bridge to the next generation, giving us an opportunity to positively shape their world," Finley says. "Attempts being made now to cripple laws like NEPA are not only shortsighted. They are ill-sighted and suicidal in the end.”
There will always be shenanigans, always political pressure being applied to grant exemptions and exceptions to compliance with environmental laws, Finley says. "There are always going to be companies hiring law firms to help them find a way around the laws. What’s unprecedented is this. Everyone behind these bad proposals says, upfront, that of course they want to protect public values and then they always add the word ‘but.’ This particular administration and the president aren’t even embarrassed. They just say we are all about jobs and we don’t care what happens downstream caused by creation of those jobs. It’s the same argument coal and mining companies used. If you raise the very real likelihood of unintended consequences, they don’t care. And they are demonstrating that disregard in their zeal to gut NEPA. I’ve never witnessed such an assault on our bedrock environmental laws.”
Just this week, EPA Administrator Scott Pruitt took to the soapbox and instead of denying climate change claimed its effects will benefit the economy. “Pruitt is out of his mind,” Finley said. “We are already witnessing changes in the chemistry and water temperature of the ocean that is affecting reproduction of salmon which will have serious consequences for both commercial and sport fishermen. More carbon dioxide being absorbed in lowering the pH of the water and the greater acidity is affecting shellfish and smaller foods like plankton that are the cornerstones for other species up the food chain in the marine environment.”
Finley says America is rapidly losing credibility as an environmental leader in the world and he has seen numerous opinion polls saying the Trump Administration is out of step with the values of citizens. "We are being led back into the Dark Ages. Those who are leading attacks on laws like NEPA have disregard for everything but their narrow view of the world. They see everything through the lens of a gas nozzle or a ton of coal, science be damned. If you don't use science as the source of sound management decisions, then what do you use—shrill political dogma, religion?"
Normally restrained in telling the public what to do, Finley says the circumstances are so dire that he and other thought leaders are saying citizens need to take action now and direct concern at outrage as politicans in Washington and state legislatures.
“Citizens need to stop being passive. They need to put pressure on their elected officials, letting them know they are aware that selfish interests and greedy gluttons are pushing an agenda that is not in their best interests or that of their children’s best interests and they are not going to stand for it anymore. The days of decimating our environment are over and we need to rise up. What does America desperately need? There needs to be a #MeToo movement started for the environment.”
Rick Smith
5264 N Fort Yuma Trail
Tucson, AZ 85750
Tel: 520-529-7336
Cell: 505-259-7161
Email: rsmit...@comcast.net
