Friday, Aug. 19, 2005 | 6:37 a.m.
WEEKEND EDITION
August 20-21, 2005
In 2002, the Sierra Club filed a lawsuit that brought much of the work widening busy U.S. 95 northwest of downtown Las Vegas to a screeching halt.
The same federal law that opened the door to the Sierra Club lawsuit is now throwing a monkey wrench into the Southern Nevada Water Authority's plan to build wells and pipelines bringing water from rural Nevada to Las Vegas. The project could be delayed at least a year, if not longer, as officials try to comply with the National Environmental Policy Act.
The 35-year-old law, known as NEPA, is at the cornerstone of federal environmental rules, but critics charge that it has slowed or stopped important economic development projects, and they say now is the time to change the law.
The basic law is simple enough. NEPA requires a federal agency, or frequently a contractor, to do an assessment of the potential impact of a proposed project affecting federal land. If a project is deemed to have a "significant impact" to a community or the environment, the law requires a deeper study -- called an environmental impact statement, or EIS. The EIS studies potential impacts and possible alternatives, and almost always takes at least two years.
The law has a large effect on Nevada, where any projects affecting land outside the major cities will trigger the act, thanks to the fact that nearly all of rural Nevada is owned by the federal government.
Building a road, digging a mine, constructing a pipeline, or auctioning off thousands of acres for new homes -- any of those actions could, and have, triggered years of environmental impact studies.
That has set off debate between environmentalists and those planning the projects. Environmental groups see NEPA as a basic protection against hasty decisions. Critics, though, see it as a burden that delays and adds to the cost of necessary projects.
Rep. Jim Gibbons, a Nevada Republican who is considered a front-runner in the governor's race, is one of 21 congressmen, of whom 12 are Republicans, serving on a task force charged with "improving" the act. Many of the witnesses who have spoken at a series of community meetings held across the country -- but not in Nevada -- have suggested limiting the act and an opponent's ability to stop projects through subsequent lawsuits.
Environmentalists have charged that the witnesses invited by the Republican-dominated task force have been a stacked deck of representatives from energy, logging, ranching and construction companies. Gibbons, however, said he and the task force are open to testimony from all corners.
"Everyone applauds the original intent of NEPA," Gibbons said recently. "It's done a lot to protect our public lands. But with all the benefits, there are problems due to litigation and delays in the process.
"People in Nevada want to understand that government is really taking care of the public land. ... A modernization of the process which leads to a better result is what we're after. We want to improve the end result."
Energy development
One of the areas where some industries have had particular frustrations with the act has been in the area of energy development.
"In an era when this country's growth and economic demands require more energy than ever before, we need to be looking at alternatives," Gibbons said. "We want to protect the environment, but we need to be able to create jobs. Jobs and the environment are not mutually exclusive if done correctly."
In some cases, NEPA and its companion, the Endangered Species Act, have created insurmountable obstacles to economic development, Gibbons said.
One of those who agrees with the congressman is Mike Pack, president of Frehner Construction Co. Pack blames the Sierra Club, the courts and the federal act for the delays in putting his crews to work on the U.S. 95 widening.
Pack said his company, which started as a Las Vegas trucking company in the 1950s, had geared up for construction when the Sierra Club lawsuit brought the construction to a halt. Other efforts have similarly stalled, putting a squeeze on contractors, who often still have to meet a deadline.
"You gear up your business for what you think is coming, then when it doesn't come, you have this void," he said. If the permitting obstacles are eventually resolved, it can be difficult to again find the workers to do the job.
"People get upset," he said.
One frustration is that complying with NEPA rules seems, for contractors such as Frehner Construction, to be treacherous ground. At a point when it appears that all the environmental studies have been finished, new information can suddenly cast uncertainty on what had appeared to be settled.
In the U.S. 95 lawsuit, the Sierra Club argued that the U.S. Department of Transportation failed to consider new studies that showed pollution from vehicles could have had a health effect on school children nearby. That led to an injunction against work proceeding.
The lawsuit has since been settled and the injunction lifted, but Pack said the damage was already done.
Those injunctions can shut down projects for years, Pack noted. He said what happens is after the EIS is done, opponents can come up with new or different information to challenge it. When the EIS is done with the information available, the projects should go forward, he said.
"They need to tighten up the controls that allows injunctions to be put in place," he said. "Either we live by the rules or we don't live by the rules. The NEPA needs to address A through Z, and when that's done, you move forward.
"The NEPA rules allow too much latitude for judges and the Sierra Club and others to stop a project, for no good reason, or if it was a good reason, it wasn't in a timely manner."
Environmentalists argue that the U.S. 95 lawsuit, which was roundly criticized by many throughout the Las Vegas community, shows how the process is supposed to work. Jane Feldman, conservation committee chairwoman of the Sierra Club's local arm, said the benefits will go to Las Vegas school children for generations.
She noted that while the contractor may have been delayed by nearly two years, the Nevada Department of Transportation said the overall project was slowed by just seven months.
Settlement
The settlement resulting from the lawsuit requires state and federal governments to monitor pollution at schools close to the highway and install air filtration systems if needed.
"This kind of delay for a major project is probably more than reasonable," Feldman said. "The settlement actions allow us to clean up three schools for thousands of children. We've made a huge difference for the children who live alongside the highway."
Without NEPA and the Sierra Club's lawsuit, "Our children would be paying the price as long as those schools were next to the highway. There was no other way for us to get relief."
"Litigation was critical in this case."
NEPA has been critical in other environmental issues affecting Las Vegas. Bill Heddon, executive director of the Grand Canyon Trust, credits the law with forcing the cleanup of a huge pile of waste in Utah left by a uranium mining company near the banks of the Colorado River over a period of three decades.
The mill tailings on 130 acres produced a toxic soup of chemicals and radioactive metals that continue to seep into the river, the source of 90 percent of Las Vegas' drinking water and for more than 20 million people in the Colorado River's lower basin.
In 1993, the Nuclear Regulatory Commission had proposed simply sealing the waste at its location and declared its actions would have "no significant impact," Heddon said. If that finding had been affirmed, it would have ended the NEPA process.
But environmental groups, state governments along the river and eventually federal agencies argued that such a decision would significantly impact the environment and all those dependent on the river water.
Eventually the finding of no significant impact was overturned, and a full environmental impact statement process started. More than a decade after the original NRC decision, the process finally produced a U.S. Department of Energy decision in April to move the waste 30 miles from the river.
Heddon said the public participation component of the NEPA process was critical to the success of moving the waste away from the Colorado River.
"It would have been simpler to leave it where it was, but it would have been a disastrous mistake," Heddon said.
Preservation needed
John Hiatt, a Las Vegas conservationist and conservation chairman of the Red Rock Audubon Society, said the law needs to be preserved and not weakened.
"NEPA is the only mechanism by which there's any requirement that serious consideration be given to alternatives and impacts to major federal projects," Hiatt said. "To do away with this will take us back to a situation in which the public has no clue what is happening until after it has happened."
The wells and pipelines proposed by the water authority are a case in point, he said. A series of "scoping" meetings to gather public input on the plans has thus far generated more than 7,500 comments, and the process could be reopened.
Many of those comments have focused on feared impacts to farmers or the environment in White Pine County.
"This is the mechanism by which the public has a way to express its concerns and to bring to the federal government and everybody else the various impacts that this might cause."
Litigation that has stalled projects has come because federal agencies often try to do cursory environmental assessments when more thorough environmental impact statements would be needed, Hiatt said, although that is not the case with the water authority project.
Understanding
In some cases that is because the agencies or the contractors don't understand the process, he said. In other cases it could be a deliberate effort to avoid doing the required work. In either case, it would save time and money to do the full range of study in the first place.
"In many cases, if they had just pulled out the rule book, they would have saved themselves time and money," said Hiatt, who serves on a water authority advisory committee that is discussing the groundwater plans.
Hiatt noted that the process does not in itself approve or squelch a proposed project. It does give information for federal decision makers to use in considering a project, however.
"There is certainly a tremendous misunderstanding in terms of how the process works," he said. "The EIS -- it is intended to be an analytical process, to look at what the alternatives of a project are and the impacts of those alternatives. It is up to the officials in charge to make a decision on what to do.
"The intent of the legislation was to get the information out there, not to make things hopelessly complicated."
Even those whose projects have been complicated by the environmental law express some affection for the act.
J.C. Davis, a water authority spokesman, earlier this year cheered the decision to move the uranium mining waste away from the Colorado River. Now he is watching the same legal process slow his agency's plans for wells and pipelines on federal land.
"We fully support the National Environmental Policy Act and its objectives," Davis said. "We're fully committed to environmentally responsible practices."
But the water authority shares some of the perspectives of the dozens of invited representatives from industries who have spoken to the Congressional Task Force on Improving the act. Many of those representatives asked for some way to cut off what they believe can be an interminable legal and administrative process.
"Anything that adds certainty to the decisions made by the lead agencies would be beneficial," Davis said.
archive
