Bush overreaches executive power by exempting Navy from NEPA compliance Commentary
Bush overreaches executive power by exempting Navy from NEPA compliance
Edited by:

Cara Horowitz [Staff Attorney,
Natural Resources Defense Council (NRDC)]: "Care about the National Environmental Policy Act? Then read on. Early in January, in a case challenging naval mid-frequency sonar training exercises off the coast of southern California, environmentalists (including my organization, NRDC) won a major victory when a federal court issued an injunction requiring the most comprehensive suite yet of measures to protect whales and other marine mammals from the harmful effects of high-intensity Navy sonar. But now the Bush Administration is attempting to block the injunction through Executive fiat. Last week, the administration issued two "waivers" to undercut the legal foundation of NRDC's case: a presidential waiver (signed by Bush himself) exempting the Navy from compliance with the Coastal Zone Management Act (16 USC 1456(c)(1)(A)) in these exercises, and a CEQ decision excusing the Navy from NEPA compliance (42 USC 4321 et seq).

Both waivers constitute executive overreaching, but the NEPA waiver is particularly dangerous, as it rests on a regulation aimed at streamlining NEPA compliance in response to true emergencies—-a regulation that has, in the past, been used only to deal with unexpected emergency events like dams breaching, outbreaks of deadly diseases, and Hurricane Katrina. Never has it been used to excuse NEPA non-compliance in routine federal actions (like the regularly-scheduled training exercises at issue here, which have been planned for more than a year). Nor has it ever been used to attempt an override of a federal court decision and injunction. If approved, the waiver would open a gaping hole in NEPA, which by clear statutory language requires compliance by all federal agencies (including the military) "to the fullest extent possible." (42 USC 4332). One can easily imagine, for example, the Executive declaring "emergencies" to expedite oil and gas leasing on environmentally sensitive lands, on the theory that additional energy production is a national security priority.

We are now briefing the legality and effect of the waivers in district court, arguing (among other things) that an administrative regulation can't override clear statutory language to the contrary or a federal court injunction. We expect the issue to make its way quickly up the appellate chain. In the words of the Chair of the House Oversight Committee in a letter today deriding the CEQ waiver in this case, the regulation at issue was "not designed to undermine environmental protections or reverse court decisions the Administration disagrees with." Here's hoping the district court sets the Administration straight."

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