Earthworks Comments on Update to the Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act

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Thank you for the opportunity to submit comments on the Council on Environmental Quality’s (CEQ) proposed Update to the Regulations Implementing the Provisions of the National Environmental Policy Act (NEPA). On behalf of our members and mining-impacted communities, we strongly oppose CEQ’s proposed NEPA regulations.

CEQ’s Proposal Threatens the Democratic Process at the Core of NEPA

This proposal reveals a brazen and deliberate design to subvert the values of and opportunities for public comment. Public comments help improve agency consideration of project alternatives and result in better environmental and health outcomes. They are drawn from the lived experiences and long histories of mining impacted communities facing obstacles from many Governments’ land use decisions. These people, Native and non-Native, maintain wisdom that resides neither within agencies nor project proponents; and they bear a special relationship with the human environment.

For this reason, we find troubling CEQ’s proposed change to the current meaning of “human environment” from “people” to “present and future generations of Americans” (emphasis added).

The current definition: Human environment shall be interpreted comprehensively to include the natural and physical environment and the relationship of people with that environment. (emphasis added)

Proposed definition: Human environment means comprehensively the natural and physical environment and the relationship of present and future generations of Americans with that environment. (emphasis added) 85 Fed. Reg. 1729

This proposal reveals CEQ’s apparent position that people without the preferred immigration status do not belong to the human environment.3 It dehumanizes undocumented communities who disproportionately reside among minority and low-income populations.4 Worse, it raises the specter of similarly appalling xenophobic policies supported by this Administration. CEQ therefore erred in its determination that this proposal would not cause disproportionately high and adverse environmental justice effects.

CEQ’s proposal further insults the value of the public’s opinions by advising agencies to forfeit comments our Government deems lack specificity or timeliness. This includes a new “exhaustion” provision purporting to close off comments post draft Environmental Impact Stage (DEIS) stage. The plain reasoning provided by CEQ explains, “(t)his reinforces that parties may not raise claims based on issues they did not raise during the public comment period.”

NEPA and democracy work best when the people tell the Government which opinions have value, not the other way around.

Mines affect people from all walks of life, including those who live in extremely remote areas with limited communication access or who rely on seasonal subsistence or employment, any of which can make it more difficult to devote the time necessary to meaningfully participate. The people in communities who live with the continuing impacts of hardrock mining are experts in their own right.

They deserve an equal voice in Government mining decisions near their homes and waters, and on our public lands. Listening to their expertise belongs among the internationally accepted guiding principles that support the Social License to Operate (SLTO) and Free, Prior, and Informed Consent (FPIC).10 CEQ should embrace these values and guide agencies on avoiding decisions that may disproportionately impact minority, tribal, rural and low-income populations. Some of these populations have comparatively fewer resources to engage in highly technical matters with the specificity CEQ proposes.

CEQ’s Proposal Will Lead to Poor Agency Decisions and Potentially More Mine Disasters

CEQ’s proposals presumptively limit the time and scope of an agency’s environmental reviews and public comment periods. Placing arbitrary limits on the time to conduct well-crafted, sound Environmental Assessments (EA) to one-year and Environmental Impact Statements (EIS) to two years encourages only bare-minimum level analysis leading to poor scientific and environmental outcomes. Limiting the amount of time to conduct an EA and EIS, is another attempt to silence the public’s voice.

Mining has uniquely harmful impacts on communities and the environment. Studying mine proposals and their impacts needs to remain flexible in order to adjust to contingencies and challenges as they unfold. This is especially true for protecting cultural, historical, ecological, and tribal resources. Mines also produces vast quantities of toxic waste that often must be managed in perpetuity. Chronic seepage and sudden accidental releases to the environment are the norm.

Mines vary in hydrology, geology, and engineering, requiring expert opinions across many technical disciplines. Occasionally, experts can conduct reviews concurrently. However, in some cases, the results of one study may form some of the inputs for another subsequent review. Where environmental reviews occur consecutively, rigid timelines could undermine the quality of the science. All of this suggests that we need more rigorous and flexible environmental reviews to reduce the damage and public costs imposed by mining.

In any case, Federal land managers already promptly process the vast majority of NEPA reviews for the hardrock mining sector. When one takes longer than average, GAO found that often responsibility fell upon project proponents for the lack or poor quality of information provided to the agencies. Sometimes delays result from routine changes sought in plans of operations or normal fluctuations in commodity prices. Regardless of a delay’s reason, arbitrary time constraints pressure agencies to force decisions without all the best information. This may inadvertently result in more mine disasters.