Does US Fisheries Management Really Suffer for Being Governed by NEPA?

A new bill in Congress supposes so.

Magnuson-Stevens.  The “Sustainable Fisheries Act.”  Known by various monikers, the framework statute governing marine fisheries in the vast tracts of ocean space under US jurisdiction has had its successes and failures.  To indulge in a sweeping over-generalization for argument’s sake, it has tried to put fisheries management on a path combining all of the following: (1) participatory self-governance; (2) science-based decision-making; (3) state/federal power-sharing; and (4) equitable allocation of valuable natural resources among many stakeholders.

Since 1976, it has gradually evolved into a highly specified institutional and regulatory system.  The backbone thereof is a series of regional fishery management councils (RFMCs)

RFMCs' Jurisdictions

RFMCs’ Jurisdictions

which set and allocate allowable catches, study the commercially important species in their regions, and generally govern what remain of the “fisheries” in US waters.  As the RFMCs themselves like to point out, this is a pretty big industry nationwide (with $103B in sales in 2006) and they have a tall task trying to govern it consistent with the statute’s many expectations.

Any one of the actions taken by these regional councils *might* have a significant impact on the marine environment, truly.  Each of them acts pursuant to a delegated authority and many of their policy choices are “discretionary” in the relevant sense.  Thus, NEPA § 102(2)(C) necessitates an environmental review of those choices and, if significant impacts are probable enough, a “detailed statement” of the proposal, any reasonable alternatives—including a “no action” alternative—and the projected environmental consequences thereof.  (I’m putting aside the issue of their status as “federal” agencies.  Reasonable lawyers might disagree, but I’m of the view that they are “federal” enough.)  Indeed, in case any of this wasn’t clear enough, Congress directed that Magnuson-Stevens institutions and decision-makers conform themselves to NEPA in a reauthorization act in 2006.

But there are some who think NEPA’s involvement makes things too cumbersome, redundant, expensive, time-consuming, etc.  And despite the National Oceanic and Atmospheric Administration’s (NOAA) on-going efforts, in collaboration with the Council on Environmental Quality (CEQ), to streamline and better integrate NEPA procedures with RFMC operations, the House of Representatives has moved to “reform” things.  H.R. 1335, which just passed the House earlier this month, has aroused vocal opposition among the major environmental nonprofits.  It contains a number of provisions curbing the commitment to goals (1) and (2) and reworking the balance of equities within goal (4) above. See, for example, this statement by Pew.

But H.R. 1335 would also limit NEPA’s role in the governance of RFMCs.  If I understand it correctly (insert appropriate caveat here—it isn’t drafted to invite scrutiny), H.R. 1335 limits the statutory duty to provide NEPA-like analysis to a new species of impact statement, something the bill calls a “fisheries impact statement,” by the RFMCs’ at the adoption of their fishery management “plans” and/or major “plan amendments.” Otherwise, RFMC operations are exempted from NEPA.

Limiting the Scope of Impact Assessment Duties Comes at a Price

Impact assessment has long struggled with what Europeans impact assessors call “screening” decisions: that preliminary step where the proposal under consideration is evaluated for whether it might, probably won’t, or probably will impact “the environment” “significantly.”  In NEPA, we’ve taken to using individual agencies’ own rules that categorically exempt some classes of action, rules that categorically require an environmental impact statement (EIS) for classes of action, and for everything else the use of what Judge Richard Posner once famously called a “rough cut, low budget” version of the EIS to decide whether to prepare a full EIS.  This “environmental assessment” (EA) almost always results in a finding of no significant impact (FONSI).  Whether such findings are mostly accurate in that negative finding is a separate question.  Because EA/FONSIs are ubiquitous today.  And that has an enormous up side.  It is the rare agency that knows for certain what the consequences of its actions will be.  And it would be rarer still for that agency to be able to forecast those consequences accurately from a single perspective: the planning phase. That is precisely why CEQ and many repeat-play NEPA action agencies pay so much attention to preparing NEPA analyses at planning, operational, and intermediate stages of agency operations.

Indeed, the European Union’s experience with the preliminary “screening” decisions and the timing of impact analysis more generally convinced it to augment its requirements thereof in 2014.  These preliminary “screening” studies are often the sum total of environmental analysis decision-makers actually read.  Planning is always tentative and subject to change “on the ground” (making any impact analysis in planning stages tentative).  And big decisions are often so intertwined and multifaceted that very little that appears in an EIS will change minds.

In the case of RFMCs and their span of control, for example, a “fisheries impact statement” for a new plan or plan amendment will presumably omit a lot about the environment that decision-makers should want to know (like unmanaged species, projected climate change impacts on habitat conditions, etc.).  Most importantly, a lot of other RFMC decisions—besides plans/amendments—impact the natural world and those consequences should be part of the deliberations of an on-going management process.

Finally, amending the decisional process now—after stakeholders, RFMCs, council staff, states, and NOAA offices have worked so hard to integrate NEPA—is no way to minimize the costs of decision-procedures (which are admittedly significant).  North Pacific Fishery Management Council Executive Director Chris Oliver had this to say to Alaska Public Media:

Oliver told the council that he’s been working for years on streamlining the NEPA-Magunson [sic] process, rather than develop a new one. He’d told the council he’d prefer to go with “the devil you know. . . . “The fear is that we’re going to set up an extremely complicated process under Magnuson, the implementation of which is going to be subject to implementing regulations or guidelines. In essence, we’re going to end up doing the same thing within the Magnuson Act that we’re doing in our current process, which — while I don’t think it’s the perfect process — we’ve gotten pretty good at it.”

The administration’s position is the same:

H.R. 1335 would exempt fishery management actions from the requirements for environmental analysis under the National Environmental Policy Act and replace them with a new set of standards. This provision is unnecessary, as the regional fishery management councils have integrated environmental analyses into an overall framework that is both timely and effective. For similar reasons, the provisions regarding the Endangered Species Act, the National Marine Sanctuaries Act, and the Antiquities Act are unnecessary and likely to give rise to confusion. Rather than reducing burdens on the fishery management councils, these provisions of H.R. 1335 would interfere with a well-established and integrated system and would create confusion, delay, and the potential for litigation.

The Senate has enrolled H.R. 1335.

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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