By Angus M. Thuermer Jr., WyoFile.com
A spectrum of state officials Thursday backed away from pursuit of “primacy” over the federal environmental analysis process in Wyoming.
The state taking over functions required by the federal National Environmental Policy Act would be a bad idea, if even possible, said leaders of a legislative committee, a governor’s policy advisor, a mining representative, a county commissioners’ envoy and a conservationist.
The federal law requires environmental studies of major federal actions and activities on federal land. Such analyses sometimes include the writing of detailed environmental impact statements that run hundreds of pages and take years to complete. The Legislature’s Management Council directed the Joint Minerals, Business and Economic Development Committee “to study the possibility to enter into an agreement with the Department of Interior to provide for state primacy and oversight of environmental assessments and environmental impact statements…”
But the wording in that directive may have been hastily chosen and inaccurate, said House Minerals Committee Chairman Mike Greear (R-Worland).
“The term ‘primacy’ was used,” he told colleagues in Gillette. “We don’t want to touch that.”
Several witnesses told the committee they were frustrated by the time it took to complete reviews and sometimes the expense those reviews and subsequent conditions imposed on state businesses. Inefficiencies and bureaucracy “causes projects to go on twice as long as they need to,” Greear said of the required studies.
Wyoming does want to play a larger role in the NEPA process, however, perhaps managing contracts, performing analyses, issuing requests for study proposals, renewing permits and coordinating functions, Gov. Mark Gordon’s policy advisor Jill Callaway told the committee. Gordon did not use the word ‘primacy’ in an interview earlier this year when characterizing his talks with Secretary of the Interior David Bernhardt, describing instead Wyoming taking “more of a primary role,” in establishing the beginning steps of the NEPA process.
It’s good the committee discussed primacy and backed off, Campbell County Commissioner Mark Christensen told the members at the end of their deliberations. “Our belief is primacy would open this up to litigation we likely would not win.”
The governor is interested in the state taking on “a coordinating function role,” said Beth Callaway, Gordon’s natural resources policy advisor. “This is not an effort to take primacy over NEPA,” she told the committee.
The federal law is designed to explore alternatives to and impacts of proposed major federal actions — such as permitting an oil or gas field on BLM land, offering a Forest Service timber sale, realigning a road in a national park, or allowing grazing on federal property. Experts say it is a process to inform federal decision-makers, but that the decisions remain with federal officials who should also determine the scope and depth of such analyses.
Callaway described the governor’s goal as a coordinating one, setting tasks, managing contracts and issuing requests for proposals from potential contractors who, in some instances even today, would perform parts of the analyses. She described the sought-after role as “doing some of the paperwork.”
In addition to not being an effort to take over primacy, which presumably would involve outlining the scope of analyses and even deciding whether or how a project should advance, Gordon also is clear the initiative is not an effort to take over federal property. “That’s not part of the discussion,” Callaway said.
Wyoming could have “co-operating status” in some analyses and be a co-leader in certain reviews, she told the group. “The [Bureau of Land Management] and Forest Service are interested in streamlining their role in the process,” she said.
Already under the Trump administration some reviews have been cut in length and time of study. The reviews of construction of the $35 million Alkali Creek Reservoir and $41-million expansion of Upper Leavitt are being limited to 180 pages and two years, she said. Both involve BLM land.
Gordon has asked the Wyoming attorney general and the Wyoming Department of Environmental Quality what authority the state has and what scope its role could be, Callaway said. “The governor is now approaching the remaining agencies to gather additional feedback,” she said, and is seeking answers early this summer.
From findings and recommendations, Gordon will develop a strategy, she said. What he might want from the Legislature, “I don’t quite know,” she said.
He could ask for administrative authority, seek new staff to work on requests for proposals.
“Do we need to set up a new agency?” she asked, without offering an answer.
The committee should exercise “some caution,” as it studies the issue, Travis Deti, executive director of the Wyoming Mining Association said. Depending on what role Wyoming assumes, “it may not lead to a more efficient process,” he said.
Foremost among his worries is that the state would be diverted from its task of issuing permits, he said.
“There may be hidden costs when pursuing this option,” he said. Taking over the writing of environmental impact statements could become “a long, laborious and litigious program,” that would “consume many dollars from the state,” he said.
“That’s our main concern,” Deti said. “Are people going to be taken off their primary duty … on mine permits?” he asked.
“It is a federal process,” Deti said. “If we’re going to make reforms … I’d encourage the Legislature and administration to keep weighing in and make those changes at the federal level.”
The Wyoming Outdoor Council found a rare moment of solidarity with industry, a representative said. “I had to jump at the chance to come up here after the Mining Association and say we agree with their comments,” said Steff Kessler, the conservation group’s program director.
“Contrary to what you may think about conservation groups, we are as frustrated and distraught [as others] about the length of the NEPA process,” she said.
NEPA was designed to promote transparency and to provide a greater level of accountability in government, she said. “At times… it seems like it’s not very transparent to the public.”
She pointed to an ongoing revision to the BLM’s Rock Springs area resource management plan, in which local groups like county commissioners, but not conservationists, are included as cooperators. There have been meetings with cooperators, she said. “They’ve had a chance.”
But, “the public has been kind of closed out of that process since 2011,” she said. “Cooperators’ meetings are not open to the public,” under BLM rules, Kessler said.
She asked for changes so “we just get to sit and listen to discussions going on so we know how our state and local representatives are representing us,” she said. “That is something you could look at. Other states require that.”
Counties could become contractors and perform some analyses, County Commissioner Christensen told the committee. A conservation district in Sublette County did as much when it authored an analysis for unscheduled temporary grazing leases, he said.
Counties’ greatest strengths may be in the field of socio-economics, he said. “Because of legislation you enacted, we are deemed to have special expertise,” he said.
When county resources are employed that way “that cost is ultimately passed on to the company who is having the development done,” he said.
Environmental studies today are voluminous “in order to deter litigation,” he said, joining a chorus asking for shorter studies. “I could find way more opportunities to litigate if you gave me six inches of paper than if you give me something precise.”
One committee member asked whether other states had engaged in the issue and asked for research into that topic. Some states have what are known as “little NEPAs,” Sam Kalen, associate dean at the University of Wyoming College of Law, told WyoFile.
The California Environmental Quality Act is the premiere example, he said in an interview last month. Wyoming does not have a similar law.
“What that means is when NEPA is triggered, the state does its own NEPA,” he said. In California, there is a joint CEQA/NEPA document.
“The state has a greater interest in helping prepare the NEPA [documents] he said. But CEQA requirements and protections are “even more robust,” than those in the federal law, he said.
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