Energy & Environment

Triggering A Backlash

State officials run political risks if they break 30-year-old promises to prevent severe ecological damage.
by | February 2003

Tom Arrandale

Tom Arrandale is a GOVERNING correspondent.

Cindy Younkin isn't the kind of state legislator given to railing intemperately about out-of-control government bureaucrats. But Younkin, a water-rights lawyer from Bozeman who chairs the House Natural Resources Committee in Montana, has been more effective than most of her conservative counterparts around the nation in pushing legislation to "streamline" the country's environmental laws.

For that reason, Younkin last November came close to losing a safely Republican seat in a steadfastly conservative state--because of one bill she championed. Younkin authored a law that pares back the state's power to deal with environmental impacts from power plants, mines, pipelines, roads and other potentially destructive developments. Younkin survived reelection by 109 votes, but she paid a political price for--as environmentalists see it--substantially weakening the Montana Environmental Policy Act of 1971, one of the country's pioneering state conservation statutes.

Bozeman may be getting a lot trendier these days, but it still doesn't compare to places such as Burlington, Vermont, or Santa Cruz, California, as communities where politicians ordinarily get caught up in constituents' tree-hugging fervor. Even so, Younkin's close call signals that elected officials risk a backlash if they're perceived as breaking promises that governments made 30 years ago to do everything they possibly could to protect public health and prevent senseless ecological damage.

That's a lesson the Bush administration might keep in mind as the White House moves quietly on several fronts to force federal agencies to change how they implement the National Environmental Policy Act of 1969--presumably by trimming back the obligations the law imposes to take a thorough look at all the consequences before making major development decisions. NEPA and equivalent state laws enacted by Montana and 24 other states require governments, before approving major projects, to draft environmental impact statements to identify the least destructive options. Compliance can be cumbersome as agencies draft and redraft statements and environmental groups go to court to challenge the conclusions. Loggers, miners and other private interests have been grumbling for three decades that the paralysis by analysis keeps projects from getting approval in a timely fashion. Public officials complain just as much that second-guessing by environmentalist lawyers and activist courts counts more than their best professional judgment.

Over the past 30-odd years, however, NEPA has proven to be the nation's most comprehensive--and arguably most effective-- environmental law. So any changes in implementation mean the stakes for states and local communities in most parts of the country could be higher than those in more publicized environmental-policy controversies.

What's at issue here is the public's confidence that their government will make sure economic development doesn't come at the cost of unnecessary or unforeseen damage to the watersheds and wildlife that communities rely on. Just as important, the changes in NEPA could determine how much discretion government experts will have to discern what the consequences of development could be and to figure out how to prevent environmentally destructive aftereffects.

Burdensome as they are, NEPA and similar state laws have kept governments from proceeding rashly to sanction economically attractive projects, no matter the ultimate environmental impacts. Although imperfect, the directives to consult the public have opened up government decision making to more complete view and given communities the chance to influence their own futures. If anything, that's something governments need to do more of.

Of course, there's room for reasonable fine-tuning. Impact statements based on one-time assessments lock agencies into decisions that assume environmental factors are constant.

However, for the federal government or a state to change existing procedures before alternatives are in place can carry fateful consequences. In Montana, for instance, Younkin's bill has prohibited state agencies that complete MEPA reviews from ordering mitigation steps that other state pollution control laws don't specifically authorize. Without that discretion, state regulators last year concluded they had no power to prevent the state's biggest utility from building a pipeline right across the Dearborn River's critical trout-spawning beds. Fortunately for Montana's lucrative fly-fishing business, the utility negotiated an alternative routing with Trout Unlimited.

Younkin argues that it's up to the Montana legislature, not agency biologists, to decide whether or not the state needs to intervene in similar situations. Yet Montana legislators meet for 90 days every other year. It's not likely they can act quickly to counter every threat to the state's most durable economic foundation.


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