Ask most parents with children who have recently gone through the college application process to identify the most frustrating part of the entire enterprise, and they will likely say helping their kids with the essays and short answers. On certain applications my two children completed, responses to questions like: “Tell us what makes you different from all the other high school graduates who want to attend” were limited to the size of a tweet. Not a word count – a character count.
I understand the motivations on the part of beleaguered admissions staff. Some schools receive tens of thousands of applications, and there is no reasonable way that they could read lengthier submissions, never mind trying to distinguish from those the qualities of one student from another. So the colleges shorten the permitted responses. The computer application form literally prevents one extra word or character from being entered.
The U.S. Department of the Interior has now adopted this trend and applied it to NEPA. In a Departmental Order (Number 3355) issued on August 31, the Deputy Secretary established strict page and time limits for any Environmental Impact Statement for which the agency takes the lead. Most EISs need to be completed within one year (not even the two-year goal announced by the President’s recent Executive Order) and must be no more than 150 pages (or 300 pages for “unusually complex projects”). Environmental assessments will also get page limits, to be determined by the end of September by the various DOI bureau heads.
There is policy precedent for this draconian approach. The Council on Environmental Quality’s own regulations suggests page limits for EISs and EAs, goals that may have been adhered to early in NEPA’s history, but have long since been viewed as aspirational, not mandatory. Interior has seized upon those recommendations in light of the agency’s internal NEPA streamlining review and the administration’s EO aimed at identifying and preventing impediments to the efficient completion of environmental review and permitting for major infrastructure projects.
Can this new agency order work? Let me answer using my own self-imposed word limit of 1: no.
Page limits have their place. Courts impose them on lawyers to force advocates to get right to the main point of their arguments. For the most part, that process works. I probably don’t need to cite five cases for the same principle of law or offer “in the alternative” arguments that don’t have a realistic chance of being accepted.
But preparing an EA or an EIS is simply different. While the Interior Order correctly states that the goal of NEPA is to promote the adoption of sound decisions, not the generation of paperwork, some decisions are just more complicated than others. Some proposed actions present difficult trade-offs between potential benefits and environmental impacts. Some natural resources issues involve consideration of trends and data that must be confronted in order to make a “sound decision.”
The range of the Interior Department’s agenda demonstrates this challenge perfectly. The planning decisions for development of mineral resources across wide stretches of federal land or the offshore development of traditional and renewable energy literally cover hundreds of square miles, and will impact some of this country’s most sensitive resources. Some of those EISs generate tens of thousands of public comments (admittedly not all of them equally insightful or helpful) that require consideration and thoughtful responses. Other Interior NEPA decisions aren’t as difficult. An oil and gas project that has gone through a thorough EIS should not have to produce another equally complex or lengthy document just to obtain future permits on that project, such as a drilling approval, for example.
Yet, an arbitrary page limit strikes me as self-defeating. College admissions officers may have reduced the burden of reading all those applications, but their process does not seem to benefit greatly from reading thousands of tweet-sized answers with students extolling their virtues in lingo and cliché. An applicant who can concisely and persuasively summarize their thoughts should rise to the top of the pile – regardless of whether their essay is a few words or even sentences over the limit.
Similarly, NEPA consultants should definitely strive for brevity and clarity when preparing an EIS. The industry certainly doesn’t benefit from a Charles Dickens approach where they get paid by the word. (“It is a far, far, better mitigation measure that I propose, than I have ever proposed before.”) Rather than the imposition of a page limit, the federal government should guide those preparing NEPA documents to simply focus on what matters. Making a fair and justified cut between those resources that are truly at issue and those that aren’t as a result of any specific proposed action can and should substantially reduce the length of EISs. Using plain language and effective graphics can also fulfill NEPA’s promise of improved public participation.
In the end, arbitrary page limits will simply invite more litigation and challenges to the adequacy of an agency’s environmental analysis. Skeptics of the administration’s streamlining goals will be further emboldened to sue first and ask questions later. Shorter can be better at times, but for the most part, better is better, even if it needs to be covered in a few more pages.