Monday, April 6, 2020

Gunnison County reps testify against NEPA deregulation

“Gunnison County has a significant interest in this matter”

By Katherine Nettles

Two representatives from Gunnison County gave testimony at a public forum on February 11 in Denver for the proposed changes to the National Environmental Policy Act (NEPA), stating their opposition to the changes and highlighting how those changes may affect Gunnison County in the future.

The public forum was the first of two being held nationally. The next one will take place Washington, D.C. on February 25.

The Trump administration has proposed the changes as part of a major deregulation policy to help foster a faster process for public infrastructure projects and to reduce the burdens of regulatory procedures. The proposal comes specifically from the Council on Environmental Quality (CEQ) released last month.

The NEPA was signed into law in 1970, and establishes that federal agencies must provide detailed Environmental Impact Studies (EIS) of how proposed projects will impact the surrounding environment, determine what adverse affects might result, explore alternatives to the proposed actions and consider what unintended long-term impacts might be, among others.

While the proposal has made national headlines, Gunnison County attorney David Baumgarten and High County Conservation Advocates executive director Matt Reed testified about how the sweeping regulatory changes will impact the areas right here in Gunnison County. As Reed noted, more than 80 percent of Gunnison County consists of federal public lands and have benefitted directly from the oversight of NEPA throughout the past 50 years.

“These are significant changes proposed … and in my view it was pretty shortsighted on the part of the CEQ,” said Reed.

Reed spoke during the morning session of the forum last week, and there were two additional sessions that day to accommodate the number of speakers, each of whom was limited to three minutes. Reed said the advance tickets were reserved within minutes of their release, so it was fortuitous that two tickets went to representatives of Gunnison County.

Reed’s testimony stated on the record, “Gunnison County, like much of Colorado, is in transition. The population is booming, coal is declining, the climate is changing, old jobs are transitioning out and new jobs and technologies are emerging. These lands are the backbone of the community, providing jobs, clean water, recreation, wildlife and countless other benefits. NEPA is the critical mechanism to ensure that our community is able to plan for the future. NEPA fosters our consideration of evolving pressures to local public lands and the environment, resulting in better-informed decision-making and management of these shared public resources.”

Reed also listed several examples of how NEPA has provided value to local communities.

“NEPA has ensured that proposed trail expansions at Signal Peak don’t decimate the threatened Gunnison sage-grouse. NEPA is ensuring that a 15,000-acre logging project in Taylor Park doesn’t add over 100 miles of new road construction to a landscape already struggling with travel management problems. NEPA ensures that big game populations and our hunting economy are considered in proposals for natural gas development in the Upper North Fork. NEPA ensured that ski area expansion at Crested Butte took into account trout populations and impacts to fishing.

“In Gunnison County, like in many rural Western counties with significant amounts of federal lands, the public looks to NEPA, participates in NEPA, and is thankful for NEPA. We see NEPA as a roadmap to better decision-making for a shared public resource, not as a roadblock. CEQ’s proposed rulemaking undercuts this law just at the time when it is most necessary. Minimizing public review and input is the exact opposite of what is needed for communities working hard to balance population growth, job diversification, climate change and the environment. I care about the future of Gunnison County and its public lands. As such, I ask you to abandon your effort to dismantle the law that helps our community to understand and plan for its future,” concluded Reed.

Reed characterized the forum as a positive one for NEPA, with people speaking from across the country. “The overwhelming majority of the speakers were in support of NEPA and in opposition to the changes. There were a lot of tribal groups, a woman from western Appalachia, others from the Dakotas and also representatives from Colorado governor Polis’ administration such as Dan Gibbs,” [executive director of the Department of Natural Resources],” he said.

Reed noted the rally held that same day in Denver adjacent to the EPA headquarters as well. “The state came out in support of NEPA,” he said.

“The reason I did testify was to bring the perspective of somebody who grew up, and lives and works in Gunnison County. Eighty percent of Gunnison County is federal land. NEPA is familiar to us. I don’t know if that resonates with someone who is in D.C. in the trenches. So many things go through NEPA that we all care about … and it’s important to all of us.”

Baumgarten testified during the evening session on behalf of the Gunnison County commissioners.

“Gunnison County states tonight—as it will in its written comments—that the proposal of the CEQ regarding NEPA is a significant departure from CEQ’s prior interpretation of NEPA as well as agency practice, case law, and guidance consistent with that interpretation. Rather than promoting transparency, public engagement, and informed decision-making, the proposal has the intent—and will have the consequences—to curtail environmental analyses, limit disclosures to the public, and expedite federal approvals for major projects without the corresponding and necessary consideration of potential environmental impacts.

“Gunnison County has a significant interest in this matter,” stated Baumgarten, who cited the large portion of land managed by federal agencies here. “We are a headwaters of the Colorado River Basin so impacts created in our county may be experienced all the way to Baja California and the Sea of Cortez.”

Baumgarten also reviewed that 10 federal Agencies have undertaken major actions in Gunnison County “and for whose actions Gunnison County has relied upon NEPA,” including the Federal Aviation Administration, the Federal Highway Administration, the U.S Department of Energy and the U.S Armed Forces. Baumgarten asked the CEQ to consider that “The rationales for the CEQ proposal are not based in fact; would significantly narrow the cohort of projects reviewed; will limit the NEPA requirement to take a ‘hard look’ at significant environmental impacts; would eliminate requirements to evaluate ‘cumulative’ effects and likely ‘indirect effects’ as well; limit disclosure and analysis of potential indirect impacts; limit or even eliminate analysis of climate-change issues; eliminate requirements for consideration of new information and supplementary analysis; encourage a type of analysis that eliminates necessary, on-site truthing of risks.”

Although many analysts, including the National Law Review, have predicted that the proposal will go through without many changes in its final rule, it is also expected to face challenges in court.

“If it does go through, I do anticipate litigation from a diverse group of interests,” said Reed. “If the testimony in Denver is any indication of the national mood … it will certainly be litigated. And it will be tough for it to survive in the courts.”

Baumgarten said his testimony and the written opposition to come are meant to ensure that Gunnison County ultimately has a right to take part in any litigation of that nature. He said that HCCA’s participation and the county’s “sets the stage for what might come later.”

“I think that this [proposal] is just the opposite of where as a county we want to go, and as a state and as a country. Kudos to David Baumgarten and to Gunnison County for recognizing the significance of this and stepping up as a county,” said Reed.

The NEPA’s deadline for formal written comments is March 10. The full proposal can be found in the federal register of national archives at https://www.federalregister.gov/documents/2020/01/10/2019-28106/update-to-the-regulations-implementing-the-procedural-provisions-of-the-national-environmental.

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