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Thursday, March 19, 2009

"Procedural Requirements"

Haleakala Advanced Technology Solar Telescope Special Use Permit- The Committee included report language supporting the potential development of an Advanced Technology Solar Telescope (ATST) within the Haleakala High Altitude Observatories. The Service is expected to work cooperatively with the National Science Foundation to effectuate the issuance of a Special Use Permit for access to the ATST construction site as soon as possible. In turn, The Foundation is expected to complete its analysis on the effects to Service standards in a timely fashion so that the Service can fully comply with all procedural requirements and complete the permitting process within 150 days of enactment of the Act.

That’s from a summary of the National Park Service’s 2009 appropriations legislation. Note the direction to NPS to comply expeditiously with the “procedural requirements” that stand in the way of the National Science Foundation (NSF) in constructing the solar telescope on Haleakala. This dismissive characterization by the U.S. Congress, which of course created the requirements, typifies what’s wrong with the public’s understanding of the National Environmental Policy Act (NEPA) and Section 106 of the National Historic Preservation Act (NHPA).

Both authorities apply in this case. NSF wants to support construction of the telescope on a mountain that Native Hawaiians regard as a sensitive spiritual place. If history is any guide – NSF having dirtied its pants in at least three previous cases of this kind, – NSF is trying to complete an “analysis” documenting that its project will have no adverse effects on historic properties under NHPA, and no significant impact on the human environment under NEPA. NPS controls Haleakala, and – being considerate of Native Hawaiian concerns – has very likely not been enthusiastic about NSF’s analysis. So Congress directs NPS to “work cooperatively” with NSF and get those pesky “procedural requirements” out of the way so it can “complete the permitting process” within 150 days.

In other words: “You kids get together and jump through the silly little procedural hoops that our predecessors in these chambers set up, and get that telescope built.” The notion that laws like NEPA and NHPA might have some actual purpose – that NSF and NPS in this case ought actually to examine honestly what the impacts of the project will be on the valued human environment, and consider less impactful ways of achieving its purposes – seems quite lost on the lawmakers.

But it’s hard to blame Congress, because we practitioners of NEPA and Section 106, and the agencies that oversee their implementation, have been largely responsible for creating the impression that the impact assessment laws are merely procedural. We have routinely assured our clients, those we regulate, the courts, and Congress itself that NEPA and Section 106 do not dictate the outcome of review, but merely specify the processes by which decisions are to be made.

This procedural proposition is correct, of course, as far as it goes. It must be so; we can’t have a legal system that prohibits ever having an impact on the human environment, or on historic places. But that doesn’t mean that the procedures carried out under NEPA and Section 106 are supposed to have no effect. They're supposed to lead to informed decision making -- sometimes to go ahead as planned, sometimes to pursue an alternative way of achieving a project's purpose, sometimes to abandon that purpose because its environmental costs are too great. It is oxymoronic to direct agencies to carry out the “procedural requirements” with the expectation that their results will be ignored.

Honest, objective review of the Haleakala solar telescope project might reveal that building it will do very serious damage to the environment as Native Hawaiians perceive it, and that there are other, better ways to achieve the project’s purposes. Or it might reveal quite the opposite, or something entirely different. Assuming there will be serious impacts, NSF and NPS might or might not decide that the value of the project overrides the importance of its impacts, and go ahead with it. Or they might select some alternative that does less damage. What they cannot do, and be in compliance with the law, is to pretend that real impacts do not exist. The “procedural” requirements of NEPA and NHPA should have a practical outcome; there is a point to their existence, a reason for complying with them. If they’re not going to be treated as having a purpose, there is obviously no reason to retain them in law.

If Congress doesn’t want NSF to concern itself with the project’s impacts on the Native Hawaiian spiritual environment, it ought to be honest and say so – just waive the requirements of NEPA and Section 106. Telling NSF and NPS to perform the reviews but get on with the project regardless of their results makes no sense. It does, however, reflect the sorry state to which public understanding of – and our own practice under – NEPA and NHPA have sunk.