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Promoting NEPA Transparency and Public Engagement

June 3, 2011 - 1:14pm

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“NEPA is, at its core, a transparency statute,” said Katie Scharf, Council on Environmental Quality (CEQ) Deputy General Counsel, in opening a panel discussion on using information technology to support open government initiatives, engage the public, and add value to NEPA analysis. At the March 9, 2011, event – hosted by CEQ for Federal NEPA and legal staff – speakers promoted the benefits of enhancing transparency and offered practical implementation advice. Ms. Scharf asked the speakers to address why transparency is essential to the NEPA process and describe innovative approaches and achievements. 

NEPA’s value, especially with regard to EISs, is based on transparency, observed Cass Sunstein, Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget. He quoted from Louis Brandeis, later a Supreme Court justice, on the power of public availability of information to improve government accountability: “Sunlight is said to be the best of disinfectants.”1

Public Comment Process Is Essential

The public comment process, which provides an opportunity to aggregate “dispersed information,” is indispensible to both NEPA and rulemaking, Mr. Sunstein said. The public has information that governments lack, which is why central management of complex systems generally fails, he noted. He praised “open government” initiatives that provide information that people can readily find and use, such as Data.gov. The full potential of the NEPA process, he concluded, could be better realized if more EISs were available online.

Scott Blake Harris (then the DOE General Counsel) discussed lessons learned from the Department’s recent initiatives to expand transparency in its NEPA process. He described DOE’s decision to document categorical exclusion determinations and, apparently unique among Federal agencies, make them available online with only limited exceptions (LLQR, March 2010, page 1).

Web Posting Initiative a Success

Initial internal concerns – that posting DOE categorical exclusions on a website could induce more Freedom of Information Act requests, pose litigation risks, or flood DOE offices with inquiries seeking additional information – proved groundless, he noted. The practice has resulted in no complaints, praise from stakeholders, and recommendations that other agencies follow DOE’s example. DOE’s categorical exclusion determination database (which includes more than 5,800 determinations) provides information that was not previously available in any systematic way, and is identified as a high-value dataset on Data.gov.

DOE makes draft EAs available for public comment whenever possible (concurrent with host state/tribal review). DOE now posts most draft EAs on the DOE NEPA Website (nepa.energy.gov) and provides timely email notification of postings and comment periods to individuals who register (LLQR, September 2010, page 1).

Transparency May Require Greater Risks

Chris Vein, recently named Deputy Chief Technology Officer, White House Office of Science and Technology Policy, noted that increasing transparency requires government officials to be more accepting of risks and controversy, and may require substantial capital investment. In designing public datasets, he advised, approaches based on proactive collaboration with the

users of information are more likely to lead to success than designs based primarily on the preferences of the sponsoring agency. He warned against losing credibility by ignoring comments once an agency has established the public expectation that comments will be taken seriously.

The ensuing discussion included a reminder that public disclosure in the NEPA process should not be limited to computer- or Internet-based technologies. These are not universally available to public stakeholders. Age, geography, and financial constraints may create environmental justice concerns if paper copies are no longer made available on request to parties who do not have Internet access.

1“Other People’s Money,” Harper’s Weekly, December 20, 1913,
www.law.louisville.edu/library/collections/brandeis/writings.

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