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Understanding Government Regulations
by Ed Klim

Contact                       Ed Klim


Understanding Government Regulations is a Challenge

Have you ever participated in a recreation plan study and walked away scratching your head because of the complex regulatory process?  I'm sure when you do your taxes, the tax law regulations will cause your blood pressure to rise and challenge your patience.  I am often bewildered by the government regulatory process which is so foggy.  I'm sure many of the regulations are in place because of some thoughtful process most of us really can't identify. 

The National Environmental Policy Act (NEPA) Regulations, which serve as guidelines for the Environmental Impact Studies (EIS) and Environmental Assessments performed by the Department of the Interior, the Park Service and the Forest Service are complicated and have been developed by numerous administrations. 

The requirement to identify or specify an alternative which is considered to be "environmentally preferable" was first incorporated into the NEPA/EIS regulations by President Carter's Administration in 1978.  This requirement is found in 40CFR 1505.2b, and was made a final rule on November 28, 1978 (43FR 55990).

In simple terms, an environmental impact study (EIS) must include a reasonable range of alternatives including the "environmentally preferred" alternative.  The impacts, facts and consequences of each alternative, other than the "environmentally preferred" alternative must be identified. 

An agency selects its preferred alternative by determining the purpose or objective of the proposed action.  In other words, the government should pick the alternative that meets the purpose or objective of the government agency and carries with it identified environmental impacts that are considered acceptable.  As an example, in some cases the objective may be to build a new highway, to construct a new National Park Visitors Center, to build new flood control levees, or to allow recreation such as snowmobiling or camping.

NEPA does not require the adoption of the "environmentally preferred" alternative.  Rather, NEPA is a purely procedural statute that allows an agency to support actions that have environmental impacts as long as the environmental impacts are appropriately identified and given an appropriate hard look. 

In almost all cases involving some kind of action to authorize any activity or construction, the "environmentally preferred" alternative is NOT the preferred alternative, since the "environmentally preferred" alternative usually does not enable the agency to fulfill its more fundamental purpose or mission - such as providing recreation activity and improving our quality of life.  None the less, the Carter era rules are still in effect and mandate the identification of the "environmentally preferred" alternative as part of the consideration process. 

Often times you will see the general media quote certain groups who prefer the environmentally preferred alternative and demand that alternative be chosen.  Those groups often support the environmentally preferred alternative.  The "environmentally preferred" alternative is in effect a "you-can't-do-anything" alternative - required to be in the study - by a regulation written in 1978.  By regulation, you will always see a "you-can't-do-anything" alternative in an EIS.  The alternative has no scientific support.  It just is required to be there.  Thomas Malthus would be proud!  Now you know the rest of the story. 

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