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Environmental law comes under fire after federal audit

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A new report by the Government Accountability Office has the oil and gas industry as well as politicians such as Rep. Rob Bishop, R-Utah decrying the federal environmental review process.  A typical review by the DOE  can cost $6.6 million.

A new report by the Government Accountability Office has the oil and gas industry as well as politicians such as Rep. Rob Bishop, R-Utah decrying the federal environmental review process. A typical review by the DOE can cost $6.6 million.

Jordan Edgcomb, AP

The GAO confirmed what western producers have been struggling with for years— long, drawn out NEPA analysis that prevents economic growth and job creation. – Kathleen Sgamma

SALT LAKE CITY — Critics of the federal environmental review process say the findings of a new audit bolster their assertion that the system is broken and needs a drastic overhaul.

The National Environmental Policy Act was the subject of a performance audit by the U.S. Government Accountability Office, which released a report Tuesday that shows few of the major government players track how well the law works, what it costs to adhere to its requirements or how litigation is ultimately resolved.

“This report substantiates concerns that the federal government has no system to track time or costs associated with NEPA, which is one of the most expansive regulatory laws in the country," said Rep. Rob Bishop, R-Utah. "The findings of this report are not insignificant and deserve to be given considerable attention and oversight moving forward."

While the audit pointed out that most environmental reviews are simple and fall under a less complex process via categorical exclusions or "environmental assessments," the larger, more complex environmental impact statements can drag on for years and prove costly.

"Projects requiring an (environmental impact statement) are a small portion of all projects but are likely to be high profile, complex and expensive," the audit said.

Overall, the GAO report said it was difficult to ascertain the effectiveness of NEPA.

"Little information exists on the costs and benefits of completing NEPA analysis," it said. "Agencies do not routinely track the cost of completely NEPA analysis and there is no governmentwide mechanism to do so," according to agencies the GAO reviewed.

For the U.S. Department of Energy, which did track costs in a limited way, the average price of an environmental impact statement done between 2003 and 2012 was $6.6 million, ranging from a low of $60,000 to a high of $85 million. The preparation time, at its peak, reached 1,675 days — or 4.6 years, according to the audit.

It also noted that from 2000 to 2012, the governmentwide time it took to prepare an EIS increased each year by 34.2 days.

“The GAO confirmed what western producers have been struggling with for years— long, drawn out NEPA analysis that prevents economic growth and job creation,” said Kathleen Sgamma, vice president of government and public affairs for the Western Energy Alliance. “NEPA delays to proposed Western oil and natural gas projects on public lands are holding up nearly 79,000 jobs and $17.8 billion in annual economic activity.

But the Center for Western Priorities released its own statement late Tuesday, in which it said the association of independent oil and gas producers is mischaracterizing the report.

The audit, it said, rightly underscores that the environmental review process under NEPA is a good tool for engaging the public on key issues and is a way to ferret out design or other problems in complex projects.

Rob Dubuc, an attorney with Western Resource Advocates, said the process under NEPA is necessarily long if it is an analysis on a sophisticated, complex project.

"You are talking about technically complex projects with the potential for extreme environmental impacts," he said. "I think NEPA has proven itself over the years. … I cannot imagine going back to pre-NEPA days under any circumstances."

The audit was requested by House Natural Resources Committee Chairman Doc Hastings, R-Washington, and in part by Bishop, Public Lands and Environmental Regulation Subcommittee chairman.

Last year, Bishop said that when he asked the U.S. Department of Justice for information on NEPA litigation, he was told there were 1,022 cases open from from fiscal year 2009 through March 13, with more than $22 million spent on attorney's fees.

Dan Kish, senior vice president of the Institute for Energy Research, said the report shows how NEPA has become a litigation hammer for public interest groups.

"GAO’s report indicates that NEPA is long past broken. What began as a law to encourage public participation and transparency has turned into a tool for delaying projects on federal lands. It’s paralysis by analysis."

The GAO's findings show that based on data available, NEPA case outcomes are about "evenly split" between those involving challenges to environmental impact statements and those involving other challenges to the adequacy of a NEPA review.

Generally, the federal government successfully defended itself half the time. A report from 2012 showed that the government prevailed in 24 of 28 cases decided by the U.S. Court of Appeals.

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