The following is a summary of the panel discussion on “Environmental Impact Analysis in the Complex Technology Context” at the J.B. and Maurice C. Shapiro Environmental Law Conference on Environmental Governance at the Leading Edge of Technology, held at The George Washington University Law School on March 23, 2011. Panelists for the event included Bradley C. Karkkainen, Professor of Environmental and Resource Law at the University of Minnesota Law School, Paul B. Smyth, Of Counsel at Perkins Coie, LLP and former Associate Solicitor in the Division of Mineral Resources at the U.S. Department of Interior, and James M. McElfish, Jr., Senior Attorney and Director of the Sustainable Use of Land Program at the Environmental Law Institute. The panel was moderated by Robert L. Glicksman, the J.B. and Maurice C. Shapiro Professor of Law at The George Washington University Law School. While the issues discussed by the panel were much broader than the title of the panel would suggest, this summary will confine itself to the discussion of environmental impact assessment (EIA) for basic scientific research, introduction of new substances into commerce (deployment), and oil and gas exploration and production on the Outer Continental Shelf (OCS).[i]
According to the panelists, EIAs play only a minor role in basic scientific research. This is true for two reasons: first, the National Environmental Policy Act (NEPA), generally does not apply to basic research performed by private entities; and, second, most basic research performed by federal agencies is categorically exempt from EIA requirements imposed by NEPA. In response to this present situation, the panelists discussed two proposals for creating a greater role for EIA in basic scientific research. First, the panel addressed whether private companies should be subject to EIA requirements, even when there is no federal involvement in their research activities. The panelists rejected this option as being infeasible in the current political climate. Second, the panelists noted that many of the categorical exclusions that apply to basic research performed by federal agencies were drafted in the 1980s and should be revisited. The panel also noted that many agencies would not be willing to do so unless they were required to by the Council for Environmental Quality (CEQ). More generally, the panelists expressed an opinion that requiring EIAs for basic research would impose too great a burden on activities that may never lead to technologies that are widely distributed in commerce or introduced into the environment in significant quantities.[ii]
Another subject of discussion was whether private companies should have to provide evidence showing that new substances they plan to sell are safe (or, at least, that they do not pose a significant risk of harm) before such substances can be used in commerce. This would require the burden of proof on the issue of safety to be shifted from the federal government to private industry, and would be modeled in part after the regulatory program adopted in the European Union pursuant to the Registration, Evaluation, Authorisation, and Restriction of Chemicals (REACH) regulation. The panelists viewed this proposal as being more aligned with the purpose and goals of EIA and NEPA than the current regulatory structure employed in the United States, though they noted that the Toxic Substance Control Act (TSCA) was a more appropriate vehicle than NEPA for imposing such requirements. The panelists also noted that such a program need not proscribe the precise health and safety data that companies must submit to the government to win approval to introduce their substances into commerce, as is required under the REACH program.
The final subject addressed in this summary is the panelists’ discussion of EIA for oil and gas exploration and production on the OCS. The panelists noted that the regulatory requirements for EIA in this area are in a state of flux following the oil spill from the Deepwater Horizon offshore drilling rig in April 2010 and discussed three proposals that have been raised concerning these requirements. First, it was noted that the Bureau of Ocean Energy Management, Regulation and Enforcement, formerly the Minerals Management Service, is likely to require oil companies to submit full environmental studies prior to issuing drilling permits. Second, the panelists discussed a proposal, similar to proposals for regulation of new substances discussed above, that would require oil companies to prove that novel deepwater drilling and extraction practices will be reasonably safe before they can implement such practices. This approach is already employed by nations like Norway, which has a vibrant offshore oil industry, and has received the support of President Obama and the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling.
The third and final proposal discussed by the panelists was the reinstating of the regulatory requirement that EIAs contain an analysis of the “worst case” scenario that could result from the proposed federal action, which CEQ replaced in the 1980s with a requirement to analyze “reasonably foreseeable” scenarios. In response to the argument that worst case analysis causes unreasonable public alarm and opposition, Professor Karkkainen proposed that any unreasonable public alarm created by including a worst case scenario could be mitigated by also requiring the inclusion of the “best case” scenario. The other major concern raised by the panelists was that it is too easy for opponents of a proposed action to devise a scenario that is worse than the worst case scenario developed by the drafters of an EIA (for example, if an EIS for a proposed nuclear power plant deemed as the worst case scenario the simultaneous occurrence of an earthquake and a tsunami, project opponents might bring a claim arguing that the Nuclear Regulatory Commission failed to consider the worst case scenario because it failed to consider the impacts of a simultaneous earthquake, tsunami, and flash flood). Thus, project opponents can prevent a proposed project from moving forward whenever they can find a district court judge sympathetic to their argument.
In conclusion, the panelists considered a number of proposals for altering the EIA requirements that apply to basic scientific research, introduction of new substances into commerce, and the use of new technologies for oil and gas exploration and production on the OCS. The proposals for strengthening EIA requirements for basic scientific research were viewed least favorably, while those for introduction of new substances into commerce were generally viewed as favorable; however, the proposals related to offshore oil and gas exploration and production were viewed as favorable and as the most likely to be implemented.
-Brian Plunkett, Articles Editor
[i] The contents of this summary are based on the author’s notes from the panel discussion. As such, certain statements made in this summary may contain inaccuracies, and should not be understood as representing the precise statements or views of the panelists.
[ii] Another interesting option raised by a member of the audience was that of requiring all patents to contain a brief statement of the potential environmental impacts of the new invention being patented.