Insider Tips for Finessing the NEPA Process

Want to submit comments on public lands that can influence the outcomes? Read on to learn how to craft comments that get attention.

NEPAPuzzle2by Lisa Therrell

The National Environmental Policy Act of 1969 (NEPA) calls for public participation in environmental planning in the federal domain. The purpose of the law, in part, is to “encourage productive and enjoyable harmony between man and his environment.”

Unfortunately, most letters sent to agencies provide few comments that help shape decisions. While it is important for agencies to know where you stand, and a huge groundswell of public support or resistance could influence a decision maker, NEPA is not a voting process. Five hundred identical form letters count as one comment. Agencies need “substantive comments” and it’s critical to know how to write them.

The public can provide meaningful input at two main junctures. First is the “scoping” process, when a project is first initiated and the agency puts out a “proposed action”. The second, in the case of some projects, is an Environmental Assessment (EA) or Environmental Impact Statement (EIS). These analyses include an array of alternatives and are put out for public comment prior to the agency making a NEPA decision. This article will discuss how to provide comments that are useful to the agency and may help sway things in a direction you wish to see.

good+badLettersThe scoping process identifies issues that are important for the agency to analyze and helps shape the alternatives. Comments need to be as specific as possible and submitted to the agency by the due date.

Let’s say for instance, that the Forest Service has a vacant cattle allotment in a Wilderness Study Area that they propose reassigning to a new operator. Your best bet is to familiarize yourself with federal laws, agency policy, and the applicable land management plan before you weigh in. If you determine the proposed action is in violation of law, policy, or an existing plan, point this out in your scoping letter. But don’t stop there. Point out any specific resource values at risk, and state that those values need to be analyzed. Suggest criteria that might be measurements for an analysis, such as effects on wilderness character, recreational use, water quality, or spreading invasive plants. The more specific you are in describing this, the better, especially if you can demonstrate your firsthand knowledge of the area. “Key issues” identified by the agency and taking into consideration public comments (such as yours) will shape alternatives and the decision.

If you want to recommend a different alternative than the proposed action, state specifically what that might look like. For example, you might say that you support reassigning grazing in the portion of the allotment outside the Wilderness Study Area, but not inside. The agency isn’t required to analyze your exact alternative, but you should see a range of potential actions similar to what you proposed, unless your proposal is not deemed feasible or is “outside the scope” of the project.

Once the draft EA or EIS is available for public comment, your job is to identify your preferred alternative and explain why. Point out any fatal flaws in the analysis, for example, those based on inadequate science, poor data, or failure to comply with a land management plan, laws, or best management practices. If the agency agrees, they will fix the analysis before it is finalized.

If you want a variation on an alternative, explain that as well. It’s helpful to chat with agency staff members that worked on the analysis to understand things from their point of view before you finalize your comments. Once again, mail in your comments by the due date.

The final NEPA decision will often include small modifications that don’t require exhaustive additional analysis. Once the decision is made, you have one final chance to participate for the price of a stamp or email. If you believe the decision is based on fatal flaws in the analysis or procedure, you can “appeal” the decision. This can be done as an individual or with other organizations. In a letter, outline the flaws, and state what you think the alternative outcome should be. A reviewing official at a higher level decides whether or not your appeal has merit. If they agree with your appeal points, you are first asked to negotiate an appeal resolution with the decision maker. If the flaws truly are fatal and a resolution is not reached, the reviewing official may require the decision be remanded (taken back). Don’t send in a frivolous appeal, simply because you didn’t get your way. In order to have standing, your appeal points need to relate to information you provided in response to scoping or reviewing a draft analysis.

Agency personnel appreciate thoughtful substantive comments from the public. Sometimes your firsthand knowledge adds new information that specialists were unaware of prior to your participation in the NEPA process. Always remember the Golden Rule: treat others how you would like to be treated. Keep the tone of your letter cordial and not combative. Now go grab your pen or get to your keyboard…

A big broad thank you to Lisa Therrell for this helpful article. Lisa is a retired Forest Service employee who has participated in a variety of NEPA planning projects.