The National Environmental Policy Act – NEPA – is a weird bird. It’s one of the earliest of a suite of U.S. environmental laws that took shape in the 1960s and ’70s as environmental values grew into a substantive element of our nation’s politics.
It doesn’t actually protect anything, but it does require the U.S. government to analyze the environmental impacts of the actions it takes before it takes them. It’s a sort of “eyes open” statute:
The courts have always said that NEPA does not dictate results, only process, leaving agencies free to make environmentally harmful decisions.
That’s University of New Mexico law professor Reed Benson, who makes an intriguing argument for an expanded role for NEPA in western water management. Specifically, he thinks the U.S. Bureau of Reclamation’s current approach to NEPA implementation misses an opportunity.
The Bureau, which manages dams and water distribution in the western United States, unquestionably has significant environmental impacts. But the Bureau’s position (supported, apparently, by the courts) is that ongoing operations are not and should not be subject to environmental review under NEPA. Again, Benson:
The volume and timing of water storage and release affects water quality, recreation, fish and wildlife both above and below the dam. With these kinds of impacts, one might think that federal dam operations would be subject to environmental reviews under NEPA, just as federal land management activities are. But in fact, Reclamation rarely does NEPA reviews of “routine” dam operations, despite the serious impacts on downstream rivers.
Benson thinks that represents a missed opportunity:
NEPA reviews certainly will not resolve all the environmental problems associated with Reclamation’s dam operations. But I do think the NEPA process has value in the context of long-term operations plans, requiring the agency to generate alternatives, involve the public, and develop ways to mitigate impacts. In a West where the climate is changing, water uses are changing, and values are changing, I believe NEPA can help Reclamation make better decisions about the future of its projects.
If you’re interested in western water management, I recommend Reed’s full piece.