Healthy Fisheries Need A Strong NEPA

President Richard Nixon signs the National Environmental Policy Act of 1969 into law

The National Environmental Protection Act, more typically referred to as “NEPA,” was signed into law by President Richard Nixon on January 1, 1970, after receiving unanimous approval in the Senate and broad, bipartisan support in the House of Representatives, where it passed on a 372-15 vote. As its name suggests, NEPA establishes a national environmental policy that, among other things, would see the United States government “fulfill the responsibilities of each generation as trustee of the environment for succeeding generations.”

In order to do that, NEPA requires that all federal agencies “include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement from the responsible official” that addresses

  1. the environmental impact of the proposed action,
  2. any adverse environmental effects which cannot be avoided should the proposal be implemented,
  3. alternatives to the proposed action,
  4. the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
  5. any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Such so-called “environmental impact statements” are not mere bureaucratic exercises to be completed before a federal project can continue. NEPA requires that the relevant federal agency “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.”

Federal courts have taken that requirement one step further when reviewing the adequacy of environmental impact statements, requiring that agencies take “a ‘hard look’ at [the] environmental consequences” of proposed actions.

That’s important, because NEPA provides protections beyond those offered by mere judicial review of agency actions.

To put that in a fisheries context, an environmental impact statement must be prepared in connection with any new federal fishery management plan, or any amendment of an existing plan. That provides stakeholders with a greater opportunity to challenge fishery management plans that might not be doing enough to end overfishing or protect overfished stocks.

A challenge could be based upon the judicial review provisions of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), which governs all federal fisheries management. Those provisions only permit a court to set aside a regulatory action if such action is deemed to be “arbitrary and capricious,” or otherwise unsupported by any of the evidence on the administrative record, if the action is illegal or unconstitutional, or if action is taken without due regard for legally-mandated procedures. Under such standard, a court will not intervene merely because the National Marine Fisheries Service (NMFS) failed to consider management measures others than the ones adopted, or otherwise failed to look at all sides of an issue.

NEPA requires something more. A court applying NEPA standards may invalidate a fishery management action because NMFS failed to take a “hard look” at all of the suggested responses to a controversial issue, or because it failed to consider a wide enough range of alternate management measures.

The trial court’s decision in Anglers’ Conservation Network v. Pritzker provides a good example of how that works. The lawsuit was challenged NMFS’ decisions not to require 100% observer coverage of the trawl fishery for Atlantic mackerel, which catches significant numbers of shad and river herring as bycatch, and not to add shad and river herring as managed species under the Mid-Atlantic Fishery Management Council’s (Mid-Atlantic Council) Atlantic Mackerel, Squid and Butterfish Fishery Management Plan (Management Plan).

The court first considered whether NMFS’ actions were sustainable under the judicial review provisions of Magnuson-Stevens. It found that there was substantial evidence on the record, developed at Mid-Atlantic Council meetings, to support NMFS’ decision not to include shad and river herring in the Management Plan, and also found that existing law warranted NMFS’ refusal to require 100% observer coverage in the Atlantic mackerel fishery. If the court’s review was limited to the provisions of Magnuson-Stevens, the plaintiff’s challenge would have ended right there.

However, NEPA opened up a second line of judicial inquiry. Federal regulations adopted to implement NEPA require that, when proposing an action, an agency must, among other things, “present the environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and preparing clear basis for choice among options by the decisionmaker and the public,” and “rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for them having been eliminated.”

The court in Anglers Conservation Network v. Pritzker found that, by failing to include an alternative that analyzed the impact of not immediately adding shad and river herring to the Management Plan, and by failing to explain why such alternative was not included for detailed analysis, NMFS failed to take the required “hard look” at the issue and so failed to comply with the relevant NEPA regulations. Thus, the issue was returned to NMFS and the Mid-Atlantic Council for further consideration.

The trial court’s decision was eventually overturned on appeal, for reasons unrelated to NEPA, but the trial court’s analysis nonetheless demonstrates the value of NEPA in a fisheries conservation context.
Unfortunately, NEPA’s effectiveness has made it a target of those who oppose, and attempt to avoid, regulations that promote conservation. Yet, until recently, efforts to weaken NEPA have not had much success.

That changed on January 10, 2020, when the Council on Environmental Quality, at the behest of President Trump, issued a wide-ranging regulatory proposal clearly intended to weaken the impact of NEPA and make it easier to push through projects that have negative economic consequences.

The Federal Register entry announcing the proposed regulatory changes makes that clear. Changes to section 1500.1, the very first section of the NEPA regulations, would remove existing language that refers to NEPA as “our basic national charter for protection of the environment,” describes “‘action-forcing’ provisions to make sure that federal agencies act according to the letter and spirit” of NEPA, and calls for “decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment.” Such language, and the values that it communicates, would be replaced with provisions that don’t speak to environmental protection at all.

The theme of downplaying environmental values, and the importance of environmental impact statements, continues throughout the proposed rules.

The current section 1502.1 states that “the primary purpose of an environmental impact statement is to serve as an action-forcing device to insure that the policies and goals defined in [NEPA] are infused into the ongoing programs and actions of the Federal Government,” and declares that “An environmental impact statement is more than a disclosure document. It shall be used by Federal officials in conjunction with other relevant materials to plan actions and make decisions.” That contrasts with the new, proposed regulations, which clearly relegate environmental impact statements to the role of disclosure documents prepared “to ensure agencies consider the environmental impacts of their actions in decision making,” and baldly states that “An environmental impact statement is a document that informs.” Any notion that environmental impact statements should be used to advance NEPA’s policies and goals would be completely stripped out of the section.

The current effort to weaken NEPA bodes ill for American fisheries.

A weakened NEPA would make it far easier for government-supported irrigation projects to strip away the last cold-water refuges from already endangered stocks of Pacific salmon, and make it more difficult to remove federally-licensed dams that prevent anadromous fish on every coast from accessing upstream spawning grounds.

A weakened NEPA would make it easier to adopt federal fishery management plans that, like the Management Plan giving rise to Anglers Conservation Network v. Pritzker, don’t consider the ecosystem role of forage fish when setting harvest quotas for such species, or that permit the use of fishing gear that puts fragile habitat, or threatened species, at risk.

A weakened NEPA is something that America’s fisheries, and its marine ecosystems, cannot afford.

About Charles Witek

Charles Witek is an attorney, salt water angler and award-winning blogger. Read his work at One Angler’s Voyage.

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