Tuesday, May 14, 2013

On NEPA and Duplicity

A few days ago, John Bonine, an environmental law professor at the University of Oregon, sent an email to the environmental law professors’ listserve asking for stories about “fraud, lies, omissions, and plagiarism” in environmental assessment documents.  I contributed a story—a true tale involving a little bald-faced lying and some hidden deception by the United States Bureau of Reclamation.  Judging from a followup email John sent this morning, I wasn’t the only one.  In a short time, it seems, he’s compiled a long list.

But if John had posed a different question, and had asked either about helpful environmental assessment documents or successful assessment processes, I would have had other stories to contribute.  I know I’m not the only one.  In fact, two of my favorite academic articles about the National Environmental Policy Act involve detailed exploration of the ways—sometimes counterintuitive—in which environmental assessment can generate positive outcomes.   The first, a 2002 article by Brad Karkkainen, points out that NEPA generates many environmental benefits not from disclosure and open discussion, as Congress seems to have anticipated, but instead from project revisions designed to avoid the need to disclose and discuss adverse environmental impacts.  The second, a 2006 article by Bob Adler, and provides a detailed case study of NEPA in action.  Though NEPA did not stop the project in question, Adler credits NEPA with compelling project changes that substantially reduced the adverse environmental impacts that would have resulted from the original proposal.  Both articles are entirely consistent with my own experience as a practicing NEPA (and California Environmental Quality Act) lawyer.

Indeed, in a strange way, some of John’s evidence of nefarious behavior may well support arguments—particularly Karkkainen’s—about NEPA’s effectiveness.  After all, if NEPA were simply a toothless wonder, a statute that required only meaningless disclosures, there would be no need for fraud and lies (plagiarism would be another matter; there are plenty of other reasons to cut corners).  Agencies could simply tell the truth, acknowledge the forthcoming environmental damage, and get on with their business.  The lies may show that the public reactions to (or the legal implications, under other environmental laws, of) disclosures of impacts remain significant concerns for project proponents. 

I once asked a client, a good planner who bore the burden of working for a county high on massive-scale development and low on funds, about this dynamic.  “Don’t ever underestimate,” he told me, “how much we fear that public reaction.”  For him, that fear was also leverage.  The threat of controversy gave him at least a little ability to inject progressive planning principles into an otherwise headlong rush toward sprawl.  I doubt his situation was unique.  So even as we condemn, as we should, the deception that sometimes appears in environmental assessments, we should keep in mind that the same incentives that sometimes generate duplicity also sometimes—perhaps much more often—change environmental outcomes for the better.

-Dave Owen

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