I have followed and been involved in Interior Department and other federal agencies compliance with the National Environmental Policy Act (NEPA) since it was enacted in 1970. Based on this forty years of practical experience, I have noticed one frequent and fundamental flaw in the analysis in these Environmental Impact Statements (EISs), Environmental Assessments (EAs), Categorical Exclusions (CEs), and, for BLM, Determinations of NEPA Adequacy (DNAs). This flaw is the failure to honestly assess the likelihood that promised monitoring and mitigation measures will actually be tracked and fully and effectively implemented. This flaw may be less of a concern when a private company is the applicant, and when it must post a bond or other financial surety to ensure compliance upon and after project approval. However, when federal agencies are the applicant because it is their proposed action analyzed under NEPA, they often promise monitoring and mitigation measures that they know or reasonably should know they cannot consistently track, much less fully or effectively implement. For example, ask federal agency officials for their data base on tracking of implementation of past NEPA promised monitoring and mitigation measures to determine compliance success. Or ask them what percentage of approved projects have been audited to confirm such NEPA promises compliance. My guess is that they will have that deer caught in the headlights look, and try to quickly change the subject. This flaw can be very important because it is often relied upon by the NEPA analysis itself, as well as by the public and other decisionmakers. For example, an EA might say that the proposed action would cause a "significant" resource impact (which would trigger a requirement to prepare an EIS), but the agency then promises to faithfully implement mitigation and monitoring measures to reduce the impact below that threshold of significance. The agency saves a lot of time and money by avoiding having to do an EIS, but it is based on fraud if the agency knows or should reasonably believe that it likely won't have sufficient staff or funds to actually perform to the level promised. Another example is a CE where promised mitigation is used to avoid having to do an EA. In other words, this flaw undermines the adequacy and integrity of the NEPA analysis, misleads the public and decisionmakers, and may improperly circumvent opportunities for greater public involvement and scrutiny (since many EAs have no public reviews, but all EISs do). This flaw is so pervasive that it will take strong medicine to stop it. One idea would be for federal agencies to be required to disclose exactly what level of staff and funding would be sufficient to accomplish promised mitigation and monitoring measures, and then to explain how they can guarantee to provide it. If private companies may be required to post bonds or other surety to ensure compliance, why should federal agencies be trusted with "unsecured" promises? Another idea would be to require federal agencies to consistently track through a publicly accessible data base their level of success in keeping these promises. This data base should be searchable so that if someone is following a specific project, or has commented on that project NEPA, they can keep an eye on how compliance is proceeding (or not). Finally, the buck stops with the managers. I think that managers performance evaluations should include how well they make sure that their office's promised compliance measures are carefully tracked and actually achieved. Since most federal agencies are looking at flat or slightly increased budgets in the coming years, and there is a huge backlog of past NEPA documents with these promises that may never have been tracked or implemented, I realize that we may need to largely forgive past misfeasance and basically look prospectively to fix this flaw moving forward. In any case, I recommend that future DOI and other federal agencies NEPA documents be more objectively honest about their limited capacity to keep these promises. At the very least, perhaps a disclaimer could be added to the NEPA analysis: "The promised monitoring and mitigation measures described and relied upon herein may or may not actually be tracked and implemented, subject to current and future staff and funding levels, and evolving workload priorities." If we want a more open government, I submit that more honesty is a great place to start.
Idea No. 68