The Council on Environmental Quality’s (CEQ) Notice of Proposed Rulemaking that came out a couple of weeks ago on NEPA is inexcusable and disgraceful. I find it hard to believe that an environmental organization like CEQ would engage in activities designed to put lives in grave danger, all so that companies who stand to benefit from more lax environmental laws can do so. Once again–profit over people. The National Environmental Policy Act (fondly known as NEPA) requires federal agencies to engage in a review process to identify any significant environmental, economic, social, or health impacts a project may have before decisions are made and construction begins.
A little NEPA history
NEPA was signed into law a little over 50 years ago, on January 1, 1970. NEPA is a mechanism through which communities have input on planned agency actions that could impact their welfare. The NEPA process begins when an agency develops a proposal to take a major federal action, as defined at 40 CFR 1508.18. The review under NEPA involves three different levels of analysis:
- Categorical Exclusion determination (CATEX)
- Environmental Assessment/Finding of No Significant Impact (EA/FONSI)
- Environmental Impact Statement (EIS)
Although NEPA has many provisions, one of the most important and impactful, especially for communities, is the requirement for the Environmental Impact Statement. The EIS is used to assess the potential impact of actions “significantly affecting the quality of the human environment.” In a 2019 article on NEPA I wrote, which was published by the Environmental Law Institute, I discussed the fact that through NEPA, communities, especially environmental justice communities, are provided a mechanism to engage in a meaningful way with federal agencies around federal actions that could impact their local environment and public health.
Dr. Mildred “Bahati” McClain – Executive Director, The Harambee House/Citizens for Environmental Justice
In that same article, I highlighted the work of three NEPA advocates, one of whom is a well-known grassroots environmental justice advocate, but so much more. Dr. Mildred McClain is an educator, a teacher, a sister, a mentor, and a good friend. It would be impossible to talk about NEPA without inviting Dr. McClain so we could share her insights.
Dr. McClain is co-founder of the Harambee House and Citizens for Environmental Justice, two community-based organizations in Savannah, Georgia. The mission of the Harambee House is to create the capacity of communities to solve their problems and to engage in growth and development.
Last week, I spoke at length with Dr. McClain about the proposed changes to NEPA.
Dr. McClain’s Rich History with NEPA
I asked Dr. McClain to talk about the Harambee House and the role NEPA plays in their work. In her own words, “[T]he work of Harambee House, in terms of environmental justice, focuses on working with local communities, particularly in the South, who are impacted by polluting industries and specific contaminants. We focus on issues around contaminants, exposure and health effects and on building capacity so that communities can respond in a number of ways, including direct action, policy development, industry actions and partnership development–with industries and others–to address emission problems, particularly air pollution.
We also work with local elected officials to bring resources to the local neighborhoods and to engage partners so that they have a voice in any process around any type of action that may impact them. When NEPA was first introduced, it was not as inclusive as it is today.
Back in 1991, the public hearings were almost court-like, with a ‘court’ stenographer and men in suits stiffly sitting at the front of the room. People were only given a couple of minutes to testify and were not given any feedback afterwards. There was no way to ensure that their input – for example on an Environmental Impact Statement (EIS) – would be used.
The EJ community worked to change that, to make NEPA neighborhood and resident-friendly, so that the community was given adequate time to raise questions, give input and make recommendations. NEPA is the law used to ensure that residents who would be impacted by ANY type of project, clean up, development – anything that could affect residents would, through NEPA, have a voice and are front and center in any decision-making activity. Harambee House has and continues to use NEPA in its work.”
Harambee House, NEPA, the Savannah River Site (SRS) and the Savannah River
“In Georgia and South Carolina, Harambee House used the NEPA regulations to respond to the cleanup of the Savannah River Site (SRS). The SRS is a nuclear production complex in South
Carolina, located on land in Aiken, Allendale and Barnwell Counties, adjacent to the Savannah River, 25 miles southeast of Augusta, Georgia. It was built by the U.S. government during the 1950s to produce nuclear materials for use in nuclear weapons. It is owned by the Department of Energy (DOE).
In 1996, DOE issued a Notice of Intent to prepare an EIS for ‘Foreign Research Reactor Fuel’ where it was contemplating bringing 15,000 nuclear rods from foreign and domestic research reactors to the US to be stored and disposed of. The final EIS was issued in March 2000.
NEPA allowed residents (through Harambee House) to bring their own scientists to the table to refute some of the information and descriptions in the EIS and allowed residents to elevate their knowledge around the environmental issues and even outside of that, to work with the officials from the DOE and the SRS itself and with their own scientists. That would not have occurred, especially without Executive Order.
It was particularly important in assisting us in educating the community and elevating the citizen science component, that scientists who support the findings in the community engage in science as rigorous and analytical as industry scientists. For example, our scientists found an error while reviewing the EIS for the SRS related to spent fuel rods. That error probably would not have been detected otherwise.
NEPA probably played a big role in the willingness of DOE and SRS to work with the EJ community because they [the community] would not let up, and used the NEPA document as the Bible, holding DOE and SRS accountable to the information identified in NEPA.”
Dr. McClain next described how Harambee House used NEPA to address issues related to widening the Savannah River. “In Savannah, there were plans to widen the Savannah River to accommodate larger—much larger— container ships from the Panama Canal. Harambee House used NEPA to have critical input into the process. We were able to raise issues, review documents and to utilize our own scientists. If it had not been for NEPA, the community would not have been a part of the process.”
The NEPA Ninja
Dr. McClain has a reputation as the “NEPA Ninja” and I wondered at the history behind that title. “When we first started working in Georgia and South Carolina at the SRS facility along the Savannah River, the communities were just regular residents, they had a minimal understanding of environmental problems and they did not have a clue about nuclear weapons. We had to figure out a way to get the message out and we reached into our cultural bag to pull out the NEPA Ninja. The Ninja is a character we used to explain to folks what NEPA was and how they could use it. It made NEPA fun and opened the local portals for people to engage with DOE and the SRS and to get the residents to understand the use of NEPA.”
Alarming Proposed Changes to NEPA
CEQ’s Notice is approximately 194 pages long, and I am concerned by most, if not all, of the proposed changes to NEPA. In the notice, CEQ admitted that it received comments requesting that the regulations address analyses of greenhouse gas emissions and potential climate change impacts. However, CEQ stated that it “does not consider it appropriate to address a single category of impacts in the regulations.” Climate change cannot be left out of any discussion on proposed actions that may affect the environment and the community. More worrisome is that was the only place I saw climate change mentioned at all.
Dr. McClain stated that “one of the most egregious things [about the proposed changes] is allowing industries and companies to come up with their own EIS and analysis. The second part that is even worse is that CEQ is trying to support the climate change deniers! If you do not consider climate change impacts and relate that to ongoing and future exposures, you are intentionally putting communities in harm’s way. It is both un-American and un-democratic. They also want to change the definition of “a federal action” – limiting the voices of EJ communities. This is a rollback to the barbaric cave-like days when NEPA was first instituted, because it was a cumbersome process that was not public friendly.”
I wondered what she thought would be the effect of the proposed changes on EJ. She stated that the proposed changes, if implemented, “will put the ball in the polluters court’, hijack the NEPA process and make it like it used to be,” referring to the past process that was, at a minimum, hostile to communities who wanted to testify and have input into the process.
For more information on NEPA and the proposed changes, see this blog from UCS Executive Director, Kathy Rest.
Environmental justice organizations and broader environmental organizations realize the impact of legislation, like NEPA, that unambiguously calls for public participation. NEPA provides a mechanism for them to have input in agency decisions as stakeholders and even the right to use the statute in litigation.
I invited Dr. McClain to share her final thoughts on the proposed NEPA changes and here is what she had to say, “What people need to understand is that while NEPA does not ensure that community input will be used, it does enable communities to have a voice in the process, and it requires federal agencies to consider, at a deeper level, the environmental justice implications of any planned or proposed action. This had not been considered prior to NEPA.
It was a contribution to make sure that the past and current exposures communities were already battling and that were impacting them were factored into future exposure that could result from some actions–looking at cumulative exposures and impacts.
We should fight for NEPA like we are fighting for our lives because it is the one tool that we have at our disposal to ensure that community voices are heard. We are not just reciting the problem but coming up with concrete solutions. NEPA is crucial for frontline and fence-line communities. There is no greater tool that we have, to fight for the sanctity, health and safety of our communities. To roll back NEPA is a huge slap in the face for communities. It says we do not value you – we do not value communities.”
NOTE: The comment period is OPEN. Comments must be received by March 10th. There will also be two public hearings – February 10th in Denver, CO and February 25th in Washington, DC. Please attend if you can, to comment and to show your support. Please join this fight and help save lives and protect communities.