The National Environmental Policy Act: An Interview with William Hedeman, Jr.
[EPA Journal - November/December 1980]
William Hedeman was Director of EPA's Office of Environmental Review.
Q: The National Environmental Policy Act has been in effect for ten years. How does it look to you in retrospect?
A: Very strong. It's significant that with one minor exception NEPA has enjoyed ten years without any amendments by Congress to its requirements. The statute is still respected and still capable of offering much opportunity to protect the environment in the future.
Q: NEPA has been described by the President's Council on Environmental Quality, among others, as perhaps the most influential of our environmental laws. Do you agree?
A: I think its enactment served as the cornerstone of the environmental programs which were built by the Federal Government, the States, and local governments in the decade of the 1970s. NEPA has a number of basic purposes: a desire in its goals to maintain conditions in which man and nature can co-exist in productive harmony; a desire for early public involvement in government decision-making; and a desire for complete disclosure of the environmental consequences of any proposed action before a decision is made that will affect our environment. We also see in the statute a recognition that we should consider as many practicable and appropriate alternatives as may be possible before we make a decision, and that we must try to mitigate the impacts on the environment of whatever decision we make. All of those basic concepts were embodied in the subsequent environmental statutes that were passed by the Congress.
Q: Can you give us some specific examples where this Act has made a significant contribution to preserving environmental quality?
A: Yes. Here are some cases: First, in Montgomery County, Maryland, the county government proposed a 20-million-gallon-a-day wastewater treatment facility estimated to cost from between $60 - $80 million. It was predicted that the facility would encourage rapid growth with significant environmental impact.
In contrast, an EPA recommendation developed through the environmental impact study process under NEPA would cost about $25 million. County officials still seem determined to build the larger plant and although no final decision has been made, they are considering building the facility with their own funds.
Regardless of the final outcome, it can be said that the environmental impact study undertaken on the Montgomery County facilities planning has assured that EPA funds will not be used to promote intensive development with its related environmental impacts. In addition to preventing urban sprawl, EPA's proposed alternative could save the taxpayer millions of dollars compared to what the originally planned facility would have cost.
Second, in July 1977, EPA selected seven Midwestern lake cleanup projects for analysis by environmental impact statements. Sewage treatment systems were proposed for the lakes. All projects involved substantial environmental consequences and all had a high treatment cost per dwelling to be served.
The study staff considered a wide variety of alternative treatment techniques in developing alternative designs that would protect the lakes while also considering the communities' economic well-being.
The results of the impact study were impressive: the staff found that total costs could be reduced 30-50 percent. Local costs could be cut 60-80 percent. The total potential savings identified so far on the seven projects are $30 million.
EPA is now preparing a generalized impact statement to deal with similar situations. The approaches and solutions developed in the seven-project study will then be used in hundreds of other cases. That could easily save taxpayers -- Federal and local-- millions of dollars.
Third, Yarmouth, Massachusetts, like many of its neighboring towns on Cape Cod, does not have any sewerage facilities; its wastewater flows to the groundwater through septic systems. Since the groundwater through septic systems. Since the groundwater is also the source of its drinking water, Yarmouth is very much aware of the necessity for protecting its underground water resources. A consultant was retained by the town in 1974 to develop a facilities plan to study its wastewater situation. The resulting plan recommended sewers and centralized treatment for the southern part of Yarmouth and construction of a separate facility for disposal of wastes pumped from septic tanks for the rest of the area.
In its review of the facilities plan for construction grant funding, EPA decided an Environmental Impact Statement was warranted because of the potential for groundwater degradation, local controversy over system costs, and questions regarding the extent of sewering that was necessary.
The Environmental Impact Statement has outlined an alternative approach which will produce substantial cost savings. In addition, the impact study will result in mitigation of several environmental problems associated with the previously proposed projects.
Q: How has NEPA contributed to environmental protection in Federal programs in general?
A: The Act has made a contribution form a national perspective in three different kinds of Federal programs: programs in which the Federal Government is directly involved, such as in the direct construction of projects; programs in which the Federal Government is funding projects through grants-in-aid; and in the regulatory area where the Federal Government must issue permits for projects.
The Federal construction agencies, such as the Corps of Engineers and the Department of the Interior, can cite you hundreds of examples of projects that have either been modified or abandoned because the NEPA analysis revealed that the project as originally proposed or authorized by Congress simply was not a wise course of action.
EPA's efforts in the construction grant program have led to a number of changes in proposed projects as a result of preparing Environmental Impact Statements under NEPA. Over 70 percent of these changes provided improvements in water quality from that proposed by the original project. Nearly 50 percent of these curbed excessive community growth and a significant percentage of the Environmental Impact Statements brought about a reduction of the direct adverse impacts of the project on sensitive areas including archeological and historic sites, wetlands, flood plains, and prime agricultural lands.
Finally, with respect to permit programs, very early in NEPA's history we found the courts telling Federal agencies that, in their review of permit applications, there is an opportunity through NEPA to consider and, indeed, modify of deny permits when the environmental considerations raised in the NEPA analysis reflect that there are better alternatives available to pursue a proposed course of action.
Q: Part of the Act recognizes the need to protect the land from unwise exploitation, yet land use legislation seems to get not very far on Capitol Hill. Why do you think that is so?
A: There was some land use legislation enacted by the Congress in the early 1970s, notably the Coastal Zone Management Act of 1972. I believe that the enactment of that Act was successful because of the recognition of the sensitive ecosystem that exists on the coastal zone, and the need to examine proposed projects in that zone from an areawide planning perspective. So we find Congress enacting legislation that allows an areawide land use type of review to occur in coastal areas to determine a project's compatibility with State and local land use plans. The NEPA process allows us to integrate those areawide concerns into environmental impact analysis.
Land use planning has traditionally been a matter of direct State and local concern and responsibility, just as much as the allocation of water resources. From a political standpoint, there is an extreme sensitivity on the part of the Congress to injecting the Federal Government into these areas of traditional State and local control. However, the Federal Government already is involved in this, directly or indirectly, through its various regulatory, construction, and grant programs that affect the use of land. And decisions are being made by the Federal Government in the use of land all over this country without being able to apply the broader land use planning programs that, thus far, the Congress has been unwilling to encourage in areas other than the coastal zone.
Q: Are there any other countries with the equivalent of these impact statements, or is the U.S. unique in requiring them?
A: There are a number of countries, industrialized or in the process of developing, that have procedures to assess environmental impact. Many of them met at the invitation of the Economic Commission of Europe last year to compare their approaches. Some have stronger programs than others. For example, many of them have assessment procedures that are required only by an Executive Order established by the country's present governing authority, rather than by statute.
We also are receiving a great deal of inquiry and interest on part of developing countries to gain the benefit of EPA expertise as they move to develop their own environmental assessment procedures. I have met with environmental officials from Kenya, Malaysia, and most recently, the People's Republic of China, all of whom are extremely interested in information technology exchanges with the United States to implement similar programs for environmental assessment.
Q: Are there any areas where NEPA might be changed or improved further in the future?
A: I feel that much of NEPA's problem in the past has been the manner in which it has been interpreted by the courts. In a large part, that has been caused by the litigants who have sought that interpretation, their motives, and the way in which they have framed the issues before the courts. Unfortunately, most of this litigation has focused on procedural compliance with the requirements of NEPA rather than getting to the basic substantive mandates of the Congress as reflected in NEPA's goals and policies.
I don't necessarily feel that a change to focus on the substance of NEPA need be brought about through legislation. Instead, I think this can occur through a commitment by the federal agencies charged with implementing it through the opportunities provided in changes brought about by the new Council on Environmental Quality regulation.
So, my answer is, yes, I think there are areas where NEPA can be changed. But the opportunity to bring about that change and improvement exists through the processes that are afforded in the new CEQ regulations rather than a change in the statute itself.
Q: Should there be statements to measure other kinds of impacts -- on health or the economy, for example?
A: Impacts such as these are being considered increasingly in the environmental impact process itself. Social/economic impacts, for example, are very much a concern in projects under consideration such as the MX missile and the construction of the trans-Alaska gas pipeline.
Q: Some critics have argued that the environmental impact review process might be compromised to death so that it no longer seriously considered environmental effects. Do you believe that this is a possibility or that it is happening?
A: No. I think the tide has turned. Initially, the process was being compromised. If you analyze the ten-year history of NEPA you see several stages-- an initial stage in which Federal agencies resisted its application by arguing that it was not applicable to most of their activities. As a result of litigation, that stage ultimately evolved into a second stage in which agencies admitted that it was applicable, but prepared environmental impact statements that were written more toward responding to anticipated court litigation. The emphasis was on justifying the project rather than writing a statement for planning that could be used to assist in making a decision.
We're now in a stage in which the full reasons for the enactment of NEPA and the benefits that it can offer are now being recognized by all Federal agencies. It's a stage in which there is a focus on making the process analytical rather than defensive and encyclopedic. And it's recognized as a very valuable tool in the entire planning process.
This interview was conducted by Charles Pierce, former Editor, EPA Journal, and John Heritage, former Managing Editor.