I-5 Construction Separating Capitol Hill from Downtown (Seattle Times Archive)

Upon signing the National Environmental Policy Act (NEPA) on New Years Day 1970, President Nixon signaled the beginning of a hopeful new era: “[These] must be the years when America pays its debt to the past by reclaiming the purity of its air, its waters, and our living environment.” And make no mistake, the debt was steep.

Nixon signed NEPA to begin fighting back against the cumulative burden of an unequivocally rapacious century. Though in the 1960s and 1970s environmental conditions were no longer as apocalyptic as the black noons of Pittsburgh, cars still averaged 14 miles per gallonwere 7 times as deadly, and were 5 years away from the mass adoption of catalytic converters. Lake Washington absorbed 20 million gallons of sewage per day until 1963, and at the time it was seen as a major environmental victory to dump it into Puget Sound instead. Meanwhile, the construction of I-5 was busy tearing out 10,000 homes in Washington and separating neighborhoods with an impenetrable concrete barrier. And though NEPA passed in 1970, leaded gasoline continued to legally poison our brains until 1996.

Against this runaway destruction, NEPA did something extremely valuable: it yelled “Stop and slow down!” to every project the federal government funded or for which it issued permits.  It didn’t relitigate the past, it accepted present conditions as the environmental baseline, and resolved to hold the future to a higher standard. When today we have density without misery, and far cleaner air and water, we have the Clean Air Act, the Clean Water Act, and NEPA largely to thank.

Yet NEPA also made change itself the enemy, erroneously sanctifying the status quo as a part of the same environment worthy of protection. Millions of decisions that received no environmental review, such as the Interstate Highway System, today owe us no mitigation. But a 10-foot zero emission bike trail can be set back decades by environmental process.

The EIS process has outlived its usefulness, becoming predominantly a tool for obstruction and delay. Sometimes these appeals serve genuine environmental ends (such as with the Dakota Access Pipeline) but far more often as a way of protecting vested interests against the specter of positive aggregate change. In just the latest example, Seattle will be required to study the ‘environmental impacts’ of housing people closer to where they want to live and work, on land that already houses people.

We don’t need the repeal of environmental review, but instead a clearer focus on inducing positive outcomes rather than avoiding merely negative ones. Practically speaking, this could mean things like agreeing on a set of principles (such as ‘Housing and transit and bikes are good. Do more of those.’) and aggressively expanding Categorical Exclusions for those projects.

When environmental goods are held back in the name of the environment and present conditions continue unabated, the process is broken. In the 4-5 years it takes for a Link EIS, cars will make 400 million trips on I-5 through Downtown Seattle, 50,000 new people will call our city home, and tens of thousands more will swallow long commutes because rich people outbid them for undersupplied housing. Those are environmental impacts too. The status quo needs an environmental review.

40 Replies to “The Status Quo Needs an Environmental Review”

  1. Well said. The law needs to change. Unfortunately, this Congress and this president aren’t the ones to change it. Maybe when the pendulum swings back a few years from now.

    1. Didn’t the president-elect say something about cutting regulations? And “I will require agencies to repeal two regulations for every one they add”.

  2. Well, Donald Trump and the Republican Party in general have campaigned against “needless regulation”. But I think it is important that we be careful what we wish for. Without required environmental reviews, there would be nothing to stop WSDOT from demolishing half of Capitol Hill in the future to widen I-5. Even existing projects like the new SR-520 bridge would have lacked a lot of amenities without environmental laws. In the case of 520, we would have had no bike trail, no Montlake lid, and no off-site wetlands mitigation. Maybe even six general-purpose lanes, without an HOV lane.

    1. Yeah, that’s why I think this is a terrible time to amend the law. They are likely to throw the baby out with the bathwater. The best time was 8 years ago (OK, technically 7 1/2 years ago). Obama could have basically thrown a political bone to the right (less regulation) while enabling actual environmental progress (or simply progress in general) to happen faster. I’m no lawyer, nor have I read the regulation, but it seems to me that the EIS is often used for things that have very little to do with what most people would consider the environment. Things like parking, gentrification and the effect it has on businesses are worthy of consideration, but none of them seem like environmental issues, and thus (in my opinion) should not be a required part of the regulatory process.

    2. I don’t think Zach is advocating for getting rid of environmental reviews. As someone who has worked with NEPA almost everyday for the past 10+ years I agree the law has become bastardized. From experience I can tell you how NEPA is used here in the PNW is quite different than in other parts of the country and also varies from agency to agency. I can see many ways to streamline how NEPA is used. Increasing the list of things that can be categorically exempted and restricting the authority of an agency to increase the public comment period are a couple ways.

      “I’m no lawyer, nor have I read the regulation, but it seems to me that the EIS is often used for things that have very little to do with what most people would consider the environment.”

      I think you need to be careful here. NEPA and SEPA aren’t solely focused on the natural environment. If an issue with parking, public services, housing, environmental justice, etc is identified during scoping NEPA/SEPA are supposed to, and rightly so, analyze the impacts to those resources be it social, economic or natural. The SEPA guidance actually lists the elements of the environment that should be at least looked at before an EIS is developed (WAC 197-11-444).

      My main issue with how NEPA is administered is that it has become yet another way to stall a project and EISs have become too big and take too long to develop. NEPA documents were never meant to be extremely technical publications, yet they have become that. Same with SEPA EISs. The WAC actually says, “The EIS text shall not exceed seventy-five pages; except for proposals of unusual scope or complexity, where the EIS shall not exceed one hundred fifty pages.”, but they usually are much larger than that.

  3. I probably should be clear about this, but I am not …

    Was the Hearing Examiner’s ruling based on the NEPA (Federal), SEPA (State), both, or neither?

  4. One problem with the process is that it discourages consideration of multiple alternatives. There is a natural real-world tendency to select an alternative and mitigate or analyze that – rather than have a longer, higher budget, more integrated planning and environmental review process. Planning can get diminished when the environmental step supplants a good planning process.

  5. A combination of our common-law system (which often times puts property rights above human rights) and our district-based system of representation (rather than something more proportional party based) is what causes construction to be so expensive. NIMBYs and long EIS processes are symptom, not a cause.

  6. EIS is required to consider the cost of maintaining the status quo, known as the No Action Alternative. I think the real question here is: How do you do consider the environmental impact of considering the environmental impact? And what do you do about it? How do we accurately predict where we don’t need as much information and analysis?

    To start, we could eliminate private motor-vehicle concerns like parking availability and cost from EIS scope. This is clearly counter to the goals of NEPA/SEPA.

    1. No-Build/No-Action is often considered the Status Quo alternative, but there is no such thing as “The Status Quo”. Doing nothing leads to deteriorating infrastructure and less mobility. An EIS should provide more information about the cost of doing nothing because doing nothing doesn’t mean that the Status Quo is maintained. No Build/No Action means that we are going to be paying higher costs for congestion and maintenance in the future.

      1. The deteriorating infrastructure comment is not entirely true. Maintenance and replacement-in-kind does not have EIS’s – that’s why WSDOT could get the Skagit River Bridge reopened in less than a month, since no EIS is required to fix what’s broken. However, this only applies to in-kind replacements – a six-lane replacement would have required environmental review, as would deliberately not replacing the bridge.

        EIS’s do include the cost of doing nothing in the no-build scenario. They discuss the deteriorating traffic conditions, for example, or in the case of Snoqualmie Pass, the cost of the frequent snow closures.

      2. In the case of Link lines, the do-nothing scenario assumes ST Express will be incrementally improved as previously decided, and that any approved Metro or WSDOT projects will be implemented.

    2. The no build alternative almost never means do nothing. It means continue on the present course without building the project. So, if WSDOT has a statewide guardrail improvement program, “no action” includes guardrail improvements. If there is a smaller project already funded, “no action” assumes it would be built.

  7. Great piece, Zach, as always. I heartily agree. This is a lamentable result. It’s not clear to me whether the city can or will appeal. I expect the Director’s office can seek court review.

    Of note, RossB: The Hearing Examiner who handed down this decision requiring a full EIS for legislation expanding ADUs (“mother-in-law” apartments) and DADUs (“backyard cottages”) relied on the Washington State Environmental Policy Act (SEPA) to require further environmental review. Since there’s no federal funding or permitting involved in loosening local zoning and development restrictions, this is a local issue (or at least state-level). So the target for our requests for legislative overhaul–germane to this decision, anyway–is the state legislature. It’s a tough nut to crack because we don’t want to loosen development restrictions and review willy-nilly (as @asdf2 points out above). But Zach’s call for targeted expansion of Categorical Exclusions is wise. Legislators aiming to set a course toward more sustainable development would do well to push for those adjustments to statute.

    Thanks for the piece, Zach. It was somehow a cathartic read.

    1. OK, my mistake. I figured it was federal, not state.

      That makes me a lot more eager to modify the law. It seems to me that Inslee could come up with a proposal that would be more effective, while preserving the environment.

  8. I think EIS’s are important, but the scope of the assessment is important. Are you looking at the impact on one lot or an entire neighborhood? And what are you comparing against? If I don’t built a mother-in-law cottage then my mother-in-law must live somewhere. With housing we have to accept that the population has to live somewhere. The question is then how to best allocate land so that people can live most efficiently.

    Utility usage is going to follow people to wherever they live. Transportation is one thing that can be drastically different for the same person depending on whether they live in a high density neighborhood with frequent transit or in a distant suburb. Naturally more people will have higher utility usage, but that’s simply because of concentration. However, those same people could have quite different carbon emissions based on whether they ride a bus to work, bike, walk, or drive an hour each day on a crowded freeway.

  9. “The EIS process has outlived its usefulness, becoming predominantly a tool for obstruction and delay. Sometimes these appeals serve genuine environmental ends (such as with the Dakota Access Pipeline) but far more often as a way of protecting vested interests against the specter of positive aggregate change”

    Could probably have picked a better example than the most politically contentious EIS of 2016.

    I’d go so far as to say the fracas over the DAP is the poster child for how an EIS can be used by vested interests (environmental activists) to protect the status quo (no pipeline) against the specter of positive aggregate change (shifting the movement of oil from trains to pipelines while doing nothing to impact the aggregate demand for or supply of oil coming from the Bakken).

    As the cliche goes, one man’s terrorist is another man’s freedom fighter. Those NIMBYs in QA and Pioneer Square think the current regulatory process is just fine, thank you very much.

    1. The pipeline could have gone in many places other than over Indian lands. “Let’s put it where the poor people live, that’s okay because they’re just poor people” is not a fair justification for anything, but it’s a very common one.

      1. I’m just pointing out that picking a highly politicized EIS process as an example of a ‘good’ EIS was an unforced error by a blog that strives to be non-partisan.

        I’m not defending the pipeline; the merits of the EIS decision are irrelevant to my point.

  10. There are two different laws at issue: The National Environmental Protection Act (NEPA) and the State Environmental Protection Act (SEPA). SEPA is actually the problem. It was SEPA that stopped the missing link and the backyard cottage rule. Neither of those were federal projects, so NEPA was irrelevant. Our legislature can and should fix SEPA to eliminate these stupid delays.

    1. NEPA is only used if there are federal dollars or employees on the project. I have to deal with this for putting seismometers in the ground.

  11. I recall California used to have a law with logic that went something like this:
    – Due to idling, cars pollute more when they’re stuck in traffic than when they’re moving.
    – One must assume that every trip is always a car trip, and this can never change (e.g. even transit improvement projects cannot change this assumption).
    – Therefore, any replacement of a car lane with a bus lane, or any form of transit priority in general, increases vehicle emissions, and is, therefore, bad for the environment.

    I believe California eventually changed the law to eliminate this provision, as it made approval any kind of transit project much more difficult.

  12. Great commentary! I have been thinking about this very same thing for decades, but I was never able to put it in the right words like you did here

  13. I remember that in California, they had a huge victory for urban housing, as the “no action” alternative for urban housing finally recognized that homes would be built elsewhere instead.

  14. What this points to is the failure of the miriad of systems we use to effectively replicate the outcomes possible in central planning. By federating decision making across jurisdictions, review boards, councils, courts, etc we don’t gain in access to democracy let alone quality of outcomes. Haphazardly applied or worse yet regressivley applied environmental review processes spring from this speghetti mess. Environmental concerns for particular projects and rule changes should flow from overriding goals and rules established for creating a sustainable economy.

    Yes, I’m saying Seattle Transit Blog should be concerned with the general state of US democracy. Transit/Urban advocacy is going to quickly come to hard limits of effectiveness as we hit climate change barriers and face a hostile US administration driven by crass oil interests. We are quickly coming upon the day when transit and urban planning as a special project or “island of socialism” needs to end and something with greater consciousness of the scale of our problems begins.

    1. How do “we” do that? In a democracy the majority decides what kind of administration and Congress to have. You’d have to convince millions of people who don’t see it that way. The most effective way would be to plant liberals outside the coastal cities. But they would face personal harm in living in a state like Texas or Alabama that has serious holes in its legal protections, social safety net, fairness of elections, wage levels, and unions. So we can’t just draft people to it or do a heavy-handed “Move there for the good of the country”, it has to be people who already live there or really want to move there. The second front is to bust gerrymandering, but that requires getting enough legislators in that state to support it

      1. We will quickly get off topic by definition, because I’d suggest that it is worth asking the value of single issue advocacy in a time of capitalist crisis. Issues in land use, cities, and transit are certainly intertwined with that crisis but have to be acknowledged as secondary. The big work is trying to get the entire working class on the same page. Gerrymandering works very nicely if the appeals the two parties are making are to geographically segregated communities. But an appeal designed for the working class that cuts across the urban/rural divide would have the chance of breaking that particular tactic. I think it requires a realignment of the Democratic party or its destruction at the hands of a new populist party.

      2. >> An appeal designed for the working class that cuts across the urban/rural divide would have the chance of breaking that particular tactic. I think it requires a realignment of the Democratic party or its destruction at the hands of a new populist party.

        So maybe we should just wait for the next dust bowl :)

        Seriously, the Democrats have done what they can for the folks in rural America, and for cultural/bullshit reasons, they have simply lost. The Food Stamp program is a major government expenditure that puts billions in the hands of farmers at the same time it feeds millions of Americans. But because it has been a while since we’ve had soup kitchen lines, it doesn’t seem to matter. Social Security, Medicare, Medicaid, saving General Motors and Chrysler — you would think that would be enough. Hell, you would think simply avoiding the worst mistakes of the last twenty years — Iraq, the financial crisis, Katrina — would do it, but no, not really.

        To be clear, there are real, substantive issues that get Farmer Brown all in a tizzy. But what pisses off the suburban cowboy — the folks that never farmed a day in their life but feel a kinship with the land — is us. We don’t listen to the same music, don’t eat the same food, don’t wear the same clothes — even have the audacity to nominate a black man and then — good gracious — a woman, for the most powerful job in the world. And not just any woman mind you. Not a hot, young NFL sideline reporter or an old farm hand; but an insider. A lady who has spent much of her life eating Quinoa, sipping Chardonnay and riding Volvos.

        So, yeah, without a doubt there are farmers who don’t like to be told what cancer causing pesticide they can pour all over their fields (and into the streams) but there are way more voters who simply don’t like the cut of our jib. You can fight in the war, hunt moose, and talk country all you want; but if you are from Massachusetts — Good God, Massachusetts — then you are not one of us.

        So, yeah, by all means we should appeal to folks in white/country/rural/Southern America. But let;s not pretend that the problem is us, or our inability to consider what their plight is. Hillary Clinton grew up in a middle class household and spent much of her life living with a man who lived in extreme, Southern white rural poverty. She had plans for dealing with that, along with just about every problem that ails this messed up country. How many people who voted for her opponent do you think ever bothered to read those plans?

        This is the information age — a time when educating yourself about these candidates is easier than ever. But it is also the misinformation age, a time when people feel comfortable finding information that supports their beliefs. Breaking through that layer of … oh, what’s the word … prejudice … is very difficult.

    2. This reminds me of a Martin quote from a previous podcast. Roughly, “As a transit advocate, you quickly realize that to be an effective transit advocate you have to be a land use advocate. But then you realize that being an land use advocate is an infuriating exercise, and then you retreat back to being just a transit advocate.”

      So no, I don’t think the STB should worry about the general state of democracy.

  15. Hmmm, Zach. I normally agree with you, but on this one I think you’re off base. NEPA generally goes awry when it’s improperly administered by the lead agency. It is primarily a disclosure law. Agencies are required to study, document, and disclose environmental impacts before making decisions involving the use of federal funds. SEPA requires essentially the same things at the state level. The vast majority of rulings against government actions occur when those entities make mistakes in how they do NEPA. It’s really no more complicated that that.

    A couple examples, larger and smaller: locally, the missing link of the Burke Gilman trail to Golden Gardens through Ballard got hung up not because it’s a bad idea, but because the industries in Ballard caught the city of Seattle red-handed inadequately following SEPA requirements. I wasn’t a substantive flaw in the project decision, it was a process foul. This is being remedied with a full SEPA EIS. I haven’t followed it closely, but I suspect the Queen Anne decision is similar.

    Similarly, the feds have been in a stuck state on Snake River salmon recovery because they haven’t been able to document how the impacts of dams will be mitigated, nor that they’ve considered a reasonable range of alternatives to dam operation. Their mistakes are, again, process violations that result in work stoppages.

    Properly done, NEPA can and should be used to build consensus on a decision. Say what you will about the agency, but ST offers and contrasting example: they have never had a NEPA or SEPA appeal or challenge upheld. Think about that for a minute; billions in major investments in the ground, and no process fouls. The East Link EIS is a case study in how to use NEPA to forge consensus. Despite the drama in Bellevue, people forget that at the end of the day the city council voted for the East Link project 7-0. Because ST documented every single issue, and the city had no arguments left when it was time to make a decision.

    So…. be careful what you wish for. Instead of putting one of our hallmark environmental statutes at risk in a time of uncertain politics, we might better direct our energy at demanding our agencies properly apply the law.

    1. But in both of these cases, it was quite reasonable to assume that you didn’t need to do an EIS. In one case you have a bike path, and in the other, a minor zoning change. In neither case can you say with a straight face that the environment would be harmed. But instead both agencies have to prove that. Of course it is a process foul, but one that shouldn’t be required for these types of projects. Isn’t an oil pipeline, new freeway or railway for heaven’s sake.

      1. Well, here is where some irony comes into play (and perhaps this is a point in Zach’s favor). The statutes really are not about “harm,” they are about impact. The case law is quite clear that the courts will almost always defer to more process in the presence of obvious controversy. It is just as clear the courts will give deference to sponsoring agencies on controversial matters when those agencies have fully availed themselves of the tools provided by the law. It’s a risk-reward decision the agencies have to make. In the case of the missing link, SDOT clearly prioritized schedule, and that decision came back to bite them.

  16. Does the city have no assessment of the status quo? It must have an idea what the problems are, as that is the basis for deciding what projects to do, and implied by such exercises as Vision 2040 (we wouldn’t need a vision if everything is perfect). It soulds like the city could use these to establish an environmental baseline, a list of the harms caused by the status quo that it invites change on. We’ve talked a lot about the impact of putting freeways through city centers and inner-city neighborhoods, It’s clear that the kinds of old neighborhoods people love and function well are illegal now due to minimum lot sizes, single-use zoning, setbacks, etc. Maybe we just need to prod a progressive city administration to document all this as a base EIS reference. The current mayor and council consider themselves progressive, so it should be possible to prod them (or get them to explain why not).

  17. Mend it, don’t end it. A lot of the issues around the California Environmental Quality Act (CEQA)that I’m familiar with are similar. But now CEQA reviews of traffic impacts are generally going to look at Vehicle Miles Traveled, rather than the anti-urban Level of Service. Environmental review laws could be amended to look at positive impacts rather than just negative ones. Do planning processes that document the deficiencies of the status quo.

    But when the last law is down, the highway builders of the 50’s and 60’s can come roaring back.

  18. This is a pretty lame post, and the comments confirm it. I read it as the EIS is only useful when it confirms and supports your position. Checks and balances are often inconvenient when your side is being checked. That doesn’t make them bad.

    1. I guess you disagree that here’s a public danger in allowing existing homeowners to bglock density in their neighborhood (on land they don’t own) at a time when an increasing number of people can’t find a place to live that they can afford and is close to where they go, and 2/3 of Seattle’s residential land is zoned single family, You speak as if this were just an academic exercise where it doesn’t matter which side “wins”. The reason people are speaking up is the significant public impact it has if it goes one way or another. On the one hand there’s a fixed number of people who bought their houses in another era and have what is now an extraordinary privilege and subsidy, and an increasing number of people who have trouble getting a hunan necessity — shelter — and avoiding long commutes. We want people to drive less and take transit more, but they can’t if they’re forced into suburbs where that is hard to do.

Comments are closed.