Copyright 2000 Federal News Service, Inc.
Federal News Service
February 23, 2000, Wednesday
SECTION: PREPARED TESTIMONY
LENGTH: 2076 words
HEADLINE:
PREPARED TESTIMONY OF SENATOR FRANK MURKOWSKI
BEFORE THE
SENATE AGRICULTURE, NUTRITION AND FORESTRY COMMITTEE
BODY:
On December 10, I and Senator Bob
Smith, Chairman of the Committee with oversight jurisdiction over the National
Environmental Policy Act, wrote to you that the Forest Service's conduct of the
scoping process appears to violate the terms and spirit of Council on
Environmental Quality (CEQ) and Forest Service NEPA regulations and guidance.
Since I found your February 8, 2000 reply as unresponsive as it was untimely, we
will discuss these concerns today.
The National Environmental Policy Act
has been described as this nation's environmental charter because it established
a procedure for Federal agencies to give consideration of environmental factors
in their decisions. Public participation is an integral component of the NEPA
process and Federal agencies have been directed by Presidential Executive Order
to "(d)evelop procedures to ensure the fullest practicable provision of timely
public information and understanding of Federal plans and programs with
environmental impacts in order to obtain the view of interested parties." The
CEQ regulations implementing NEPA further direct that "NEPA procedures must
insure that environmental information is available to public officials and
citizens before decisions are made and before actions are taken .... Accurate
scientific analysis, expert agency comments, and public scrutiny are essential
to implementing NEPA." This "public scrutiny" begins with a Federal agency's
announcement of intent to prepare a NEPA document and the initiation of the
scoping process, which (under the CEQ regulations) must be an "early and open
process for determining the scope of issues to be addressed and for identifying
the significant issues related to the process, with appropriate public notice
and enough information available on the proposal so that the public and relevant
agencies can participate effectively."
In subsequent guidance, CEQ has
noted "a new and significant responsibility on agencies and the public alike
during the scoping process to identify all significant issues and reasonable
alternatives to be addressed in the EIS." Scoping is the appropriate time for a
Federal agency to build confidence and trust on all sides of a proposal.
Nonetheless, despite clear CEQ direction for scoping to be an "open" process,
with sufficient information for "effective" public participation, that is not
how the Forest Service has conducted the scoping for the Roadless
Areas EIS. I reach this conclusion for the following five reasons.
First, the Forest Service has provided inadequate information on the
roadless areas proposal. As CEQ has noted, for effective
scoping, an agency must provide sufficient information on the proposal,
including alternatives, to be examined in the EIS. CEQ directs that Federal
agencies "put together a brief information packet consisting of a description of
the proposal, an initial list of impacts and alternatives, maps, drawings, and
any other material or references that can help the interested public understand
what is being proposed... the purpose of the information is to enable
participants to make an intelligent contribution to scoping in the EIS." An
information packet is especially needed when an EIS has not been preceded by an
Environmental Assessment, as is clearly the case with this rulemaking.
The Forest Service did not provide sufficient information on the
roadless areas proposal for interested parties to make an
"intelligent contribution" to the process. For example, while the Forest Service
estimated the acreage which will be impacted by the roadless
areas proposal, it did not indicate until the scoping process was
complete on a forest-by-forest basis, where those areas are located. Indeed, an
internal Agency memorandum indicates that this information was withheld because
of the "shakiness" of the data.
Second, the Forest Service has provided
inadequate notice to interested parties on the public meetings. CEQ has stressed
that "appropriate public notice" is needed for effective public participation.
Appropriate notice has not occurred for both the regional meetings, as well as
for many of the local meetings. For instance, forest users from Wisconsin and
Michigan had as little as four days notice to make arrangements to travel to a
meeting on November 16th - a meeting which was held several hundred miles from
the nearest National Forest. Likewise, forest users in Regions One and Four had
very little notice to prepare for their Regional meetings in Missoula on
November 17* and in Salt Lake City on November 17*. The Alaska Regional meeting
notice was only two days in advance of the meeting.
At the same time,
while the Forest Service has included the schedule for the local meetings on its
website, that information was not available on the website until December 1st.
Many of the meetings occurred before this information was generally available to
the public. Local meetings were held in Regions One, Three, Four, Five, Six,
Eight and Nine before the list was published on the Forest Service website. In
many regions, interested parties had to call the Forest Service to find out if,
and/or when, a meeting might be held in their area. There were also local
meetings held in virtually every region on the same day, or the day after, the
general listing for local meetings became available on the Forest Service
website.
Third, the Forest Service also scheduled meetings on
neighboring national forests for the same time and date. By scheduling
conflicting meetings, any reasonable opportunity for a party that is interested
in activities on more than one national forest to attend meetings on each forest
was eliminated. This would have been avoidable with a minimum amount of planning
and foresight.
Fourth, the Forest Service was also been inconsistent in
the number of meetings to be held on each national forest. CEQ guidance
specifically notes that "It is important to tailor the type, and timing and the
location of public and agency comments to the proposal at hand. For example, a
proposal to adopt a land management plan for a National Forest in a sparsely
populated region may not lend itself to calling a single meeting in a central
location." Many national forests seem to have chosen to hold only one meeting,
thereby forcing interested parties to travel to the Forest Supervisor's office
to comment. The correct approach taken by the National Forests of Mississippi
and in the Great Lake States - with multiple meetings at a variety of meeting
sites - should have been replicated in ALL national forests.
Fifth, we
have been told there has been insufficient time during the many of the meetings
to allow interested parties to offer public comment. In some meetings,
participants' names were drawn from a hat, and only those lucky few were given a
few minutes for comment. This limitation is wholly unacceptable. CEQ has warned
Federal agencies, "(w)hen people are admitted to a meeting, it makes no sense to
refuse their requests to speak." Worse still, participants in some local
meetings, such as those held on the Mark Twain National Forest were refused the
right to give any public comments. Rather, they were told to submit written or
electronic comments, Indeed, as Agency documents we will review with you today
make clear, these meetings were purposefully and strategically organized to
avoid having the Agency engage the public during the scoping process.
The Forest Service appears to be ignoring every warning CEQ has given on
how to do effective scoping. CEQ has noted the challenges of conducting scoping
for programmatic proposals and warned "extra care should be taken in explaining
the goals of the proposal and in making the information available well in
advance of any meetings." This moping process is replete with what we believe
are fatal flaws. I urge you to step back and rethink the process upon which you
have embarked, and to conform with the terms, and spirit, of CEQ regulations and
guidance.
**************
Good afternoon. Today we will continue
our oversight of the Clinton Administration's roadless area
initiative. On November 2, Mr. Dombeck, you received a clear sense of our views
on the merits of the initiative the Administration has unilaterally pursued,
notwithstanding our repeated offers to work with you on the development of a new
transportation policy and additional wilderness protections.
Our hearing
today will not focus on the merits of your proposal. Rather, we will review the
process you have used to date in developing this role-making. One of your senior
advisors recently described this process in the press as "democracy in action."
I must tell you that I completely disagree.
Democracy in action involves
something far more fundamental than counting how many public meetings you
schedule, or bragging about how many comments you receive. Instead, it involves
conducting your agency's business in a fashion that is fundamentally fair to all
interested parties, analytically thorough in its approach, and open to the
sunshine through public disclosure of your actions. Your efforts so far fail on
all counts.
Agency role-making is a very serious undertaking. This is
especially the case in this Administration where the agencies have elected to
avoid Congress and the legislative process and move their agendas forward
largely- if not exclusively - through role-making. Just as the Framers
constructed a series of checks and balances to govern the legislative process,
so have the Congress and the Executive Branch enacted statutory standards to
insure the integrity of the rolemaking process.
After analyzing hundreds
of White House, Department, and Agency documents requested by both Senate and
House investigators, it is our conclusion that you have violated several of
these statutory standards. You have fatally tainted this rule-making.
Specifically, we will review with you today documentary evidence that you have
violated: (1) the provisions of the Administrative Procedures Act and its
limitations on ex parte contacts during rule-making; (2) the basic goals, as
well as the specific requirements, of the Federal Advisory Committee Act; (3)
the public disclosure requirements of the Freedom of Information Act; (4) the
public participation requirements of the National Environmental Policy Act; and
(5) the limitations on the use of taxpayers' funds contained in several
appropriations statutes. My colleagues on this panel will review each of these
in mm.
Some would point to the apparent, broad support for your
initiative to dismiss as "unimportant" or "inconsequential" your failure to
adhere to basic due process. Perhaps you even believe this yourself, bolstered
by the accolades of eastern editorial writers, or the support and polling data
provided you by environmental activists. You could argue that the ends of this
initiative are so urgent and so highly desired that quibbling over your means is
irrelevant, or at best, as one Department memorandum describes it, an attempt by
Congress to "stymie" the Administration's efforts.
Some of your
supporters are so intent to stop roadbuilding and so opposed to cutting trees
that they would object to you following the law if it impeded their goals. Like
Will Roper, the son-in-law of Sir Thomas More, they object to giving the devil
the benefit of the law. Perhaps you asked them, as More asked Roper, "what would
you do? Cut a great road through the law to get after the devil?" I'm sure their
answer would echo Roper's to state that, "Yes, I'd cut down every law in England
to do that."
Regrettably, the record we will review identifies you as
more Will Roper, than Sir Thomas More.
I would suggest to you Mr.
Dombeck that someday- perhaps sooner than you would like - you may be faced with
an Administration with objectives somewhat different than yours or the
supporters of this initiative. At that time, you may wish that the due process
protections of these statutes had not been weakened on your watch. Perhaps you
will regret that you did not advise your supporters as More advised Roper, "and
when the last law was down and the devil turned round on you, where would you
hide, Roper, the laws all being fiat? This country is planted thick with laws,
from coast to coast, and if you cut them down do you really think you could
stand upright in the winds that would blow them? Yes, I'd gave the devil the
benefit of law for my own safety's sake."
END
LOAD-DATE: April 19, 2000 
