By Angus M. Thuermer Jr., WyoFile.com
Experts in federal environmental law are raising questions about Wyoming officials’ quest to “assume primacy” over analyzing the potential impacts of projects on federal lands, like drilling for oil and gas.
Federal laws are clear that agencies such as the U.S. Forest Service and U.S. Bureau of Land Management and the National Park Service are responsible for stewarding their respective holdings, a former national park superintendent, a scholar, and a veteran conservation advocate told WyoFile. They responded to a conversation between Gov. Mark Gordon and Secretary of the Interior David Bernhardt about how Wyoming could assume a role that’s now the purview of federal agencies.
“The notion here would be could the state have more of a primary role in establishing the beginning steps of [the] NEPA [process],” Gordon told WyoFile in late March. “In other words, could the state organize the NEPA effort and kind of walk through it and deliver [results]” to a federal agency.
Following Gordon’s lead, the Wyoming Legislature expects to study over the next nine months “state primacy and oversight of environmental assessments and environmental impact statements …”
Federal agencies prepare the environmental reports before deciding whether activities on federal lands — everything from grazing on BLM and Forest Service allotments to road construction in national parks — should be allowed and under what conditions. The reviews are required under the 1970 National Environmental Policy Act, a charter for protection of the environment, and are the foundation for subsequent decision-making.
“The [NEPA] law does not contemplate delegating the authority to the state,” said Sam Kalen, associate dean at the University of Wyoming College of Law. States can become more involved in the NEPA process if they have their own environmental policy acts (Wyoming does not), if they are involved with the feds in a transportation project, or if they are applicants for a specific project, he told WyoFile.
Federal laws allow states to have primacy in some areas, like in the protection of drinking water, Kalen said. Also, for certain permits issued under the Clean Air Act, the federal government can again delegate authority to states.
“All those are different from what David [Bernhardt] and the governor might have been talking about,” Kalen said. What the two discussed, according to a Wyofile interview with Gordon, is “a little bit more novel than what we have seen,” Kalen said.
Determining what happens on land belonging to all Americans — national parks, national forests, BLM property — “it’s still a federal decision,” Kalen said.
Former Yellowstone National Park Superintendent Dan Wenk emphasized that point. “I don’t think the American public will stand for a single state having primacy over something that affects everybody in the nation,” he said. “Those are federal lands, not state lands.”
“I just don’t get how we could do this,” he told WyoFile in a telephone interview. “To basically turn it over to the state — for them to prepare the document, I just don’t even understand how that’s possible … under the law. As a proposal, this has a long way to go.”
Sublette County Commissioner Joel Bousman talked to Bernhardt earlier this year about the state and local governments increasing their involvement in environmental reviews, and Gordon had a similar conversation with the secretary, lawmakers said at a meeting of the Management Council. Since Gordon and Bernhardt’s talks, the Legislature picked up the initiative and set the issue as the second priority for study by the Joint Minerals, Business & Economic Development Interim Committee
“The Committee would study enacting a legislative framework to assert primacy over these [environmental impact] assessments,” the Legislature’s assignment reads. The goal is “a memorandum of understanding with the Department of the Interior to assume the responsibilities of these assessments that are currently required under the National Environmental Policy Act,” state documents say.
Wyoming frequently contests restrictions on development of federal lands and uses of them. Those restrictions are established in environmental documents created during the NEPA review process. The documents regularly become key evidence in court battles over land use. From the authorization of elk feedgrounds to predator-killing programs to sheep grazing and oil drilling, federal environmental reviews and their adequacy are linchpins in attorneys’ court debates.
The NEPA goal to “fulfill the responsibilities of each generation as trustee of the environment for succeeding generations,” may add costs to or reduce opportunities for development among federal land users. The law’s promise to ensure that “unquantified environmental amenities and values … be given appropriate consideration,” might stand in the way of bottom-line profits among interests that shun accounting for what economists call externalities.
Conservationists generally embrace analyses that consider things like wildlife, the natural scene and, as NEPA requires, “aesthetically and culturally pleasing surroundings.”
Given that tension in a state that relies on development of federal land for a significant portion of its economy and state government funding, many for-profit federal land users “would love to see NEPA done at the state or local level,” Kalin said.
One federal land permittee and Wyoming lawmaker — Rep. Albert Sommers (R-Pinedale) — outlined how and why he believes the state could play a larger role in the NEPA process. He grazes cattle with the Green River Drift, a storied cattle drive and grazing operation that sees a consortium of ranchers’ cattle summer on National Forest land in the Upper Green River drainage at Union Pass.
On the way to the Continental Divide a couple of seasons ago, conditions held up the drive and cattle needed to linger longer on low-elevation BLM property.
“A few years ago, when we had that really late snow year and needed to stay on BLM [land] a little longer, BLM didn’t have time to write the [environmental analysis] document,” Sommers said. “They ended up farming it out to the Soil Conservation Service.” (The government renamed the agency the Natural Resource Conservation Service in 1994.)
The analytical work got done, Sommers said, but “it wouldn’t have if there hadn’t have been this arrangement.”
“That was a fairly unique thing,” Sommers said. In other instances, however, “BLM and the Forest Service don’t have the personnel to get [analyses] done.”
He pointed to the Green River Drift’s grazing plan, which the Bridger-Teton National Forest has sought to update. The issue involves myriad considerations, including the presence of cattle-eating grizzly bears that are protected by the Endangered Species Act.
“Our upper Green [River] EIS is going on 19 years for our allotment up there,” he said. “That’s not a timely NEPA process by environmentalist or rancher standards.”
The Bridger-Teton has allowed grazing to continue under various permit extensions, but Sommers sees the slow pace of his grazing plan approval as hobbling.
“We’re still grazing up there,” he said. However, “if you were trying to do a fire plan for a prescribed burn — I don’t know whether they could get it done.”
Former Yellowstone National Park Superintendent Wenk has endured numerous complex and detailed environmental reviews for projects at one of the world’s most valued natural reserves and sees little opportunity for Wyoming to assume primacy over the process.
To launch a review, he would assemble a team of specialists — biologists, social scientist, traffic engineers and so on. “You would have all disciplines [that understand the issues] that might affect the natural environment,” he said.
“You use your own staff,” he said. “But if you don’t have it, you may hire that expertise to come in … or you may go to a regional office. All of it would be done under the direction or the oversight of the National Park Service.”
Take a biologist for example, he said. “You could hire a company that would provide the biologist who would look at all the research, do their best to describe the environment, the migrations.” As material is developed, “it would go out for public reviews,” he said. “Everybody gets a chance.”
Completing a winter use plan and EIS — a process necessary to allow continued snowmobile and snowcoach travel — proved to be near exhausting for Yellowstone. It took 13 years and concluded in 2013.
“We had a project manager in the park, a project manager out of the Washington office located in Denver,” he said. “We did a lot of work in the park on social science, on wildlife biology, on sound and noise. “We provided all that.”
“The amount of manpower involved by the federal government was extensive,” Wenk told WyoFile. “You do all of that before you start assessing the impacts. You don’t just say to someone ‘we want to replace a dam or realign a road or allow winter use — give us some alternatives.’”
While Sommers bemoans the lengthy, seemingly open-ended review of the upper Green River/Union Pass grazing plan, Wenk saw a worthy finish line in his own winter-use marathon.
“I think everybody’s concerned it took 13 years and eight documents,” he said of the plan that was finalized with a separate “Record of Decision” document. “It takes time to develop alternatives, to describe the affected environment, to have public review, to revise based on those comments.
“There were over a million comments,” Wenk said, “more comments than people that live in Wyoming.”
There were somewhere between five and seven court decisions along the way, Wenk said. Too many even for the former superintendent of the world’s first national park to keep track of at his fingertips.
States are automatically involved in the NEPA review process, Wenk said. “They get a chance, they get a bite at the apple.”
Sometimes a state’s opportunity is more than just a bite. In forming Yellowstone’s bison management plan, Yellowstone forged an agreement with Montana “that brought the state in as a co-lead,” he said.
“There’s mechanisms in place,” Wenk said. A state’s view “is already one perspective brought into the process.”
States themselves have “a much narrower perspective,” than a federal agency that analyzes impacts “on the basis of a national constituency,” Wenk said.
A NEPA document is not a decision document, law professor Kalen said. It is an information document attached to a decision.
Federal agencies memorialize their decisions — as with Yellowstone’s winter plan — in a “record of decision” or, when no environmental degradation is anticipated, in a “Finding of no Significant Impact.”
“It’s still a federal decision,” Kalen said. “Issuing a record of decision, that’s not what they’re talking about,” Kalen said of his impression of state goals based on a news report on the issue.
Wyoming lawmakers will have months to refine what they want to see in legislation and to express their desires regarding how much of the process they would hope to control. The topic is likely to draw significant attention.
“I would think there would be a lot of publics that would be very concerned about this kind of change,” Wenk said. “I think the legality of it would be the first thing that will be challenged.”
Veteran Jackson conservation advocate Phil Hocker, who now lives in Virginia, agreed that scrutiny could be intense.
“To farm [analyses] out to a couple of people in Cheyenne is ludicrous,” he said. “It won’t lead to excellent decisions. It won’t survive court challenge.”
Sommers believes lawmakers can refine their goals and make some advances, he said.
“I think there’s an opportunity to do things,” he said. “I think the interim work [by the legislative committee] is to flesh that out.” Ultimately, the object would be “to get more of this work done in a timely manner.”
