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THE LINK BETWEEN NATIONAL AND LOCAL ENVIRONMENTAL PLANNING

If any one act can be said to be the founding event in the evolution of modern environmental planning in the United States it was the passage of NEPA discussed in the previous section. The act required environmental impact statements (EISs) as a precondition for large projects making use of federal funds. In brief, the NEPA process works like this:9 The agency considering an action that may have significant environmental effects must prepare an environmental assessment (EA). This is a relatively brief document that describes the project in general and includes a "discussion of the need for proposed action, the environmental impacts of the proposed action, and alternative actions, and a listing of the persons and agencies consulted." The EA either concludes that an environmental impact statement is necessary or that there is "no significant impact," in which case an EIS is not required. The EA is a public document, and it may be expected that if there is serious public concern with the issue it will be subject to considerable scrutiny. The process is designed for visibility and accountability. Thus an agency could not readily rule that an EIS was not necessary if, in fact, serious environmental effects could be demonstrated.

If an EIS is called for, a complex process begins. Notice of the agency's intent to prepare an EIS must be published in the Federal Register. This is a daily newsletter published by the federal government detailing regulations and a variety of other federal actions. The first step is a "scoping" process involving other federal agencies, lower levels of government, and the public. At this time, too, a lead agency, or agency having overall responsibility, is designated. Once the scope (hence the term scoping) of the work to be done has been determined, a draft EIS is prepared, either by the federal agency or by an agency of a lower level of government or a party under contract to a body of government. The latter may be a consultant. The draft EIS includes:

a discussion of the purpose of and need for the proposed action, alternatives to the proposed action (for example, a highway EIS might include discussion of the merits of expanding mass transit instead), including a no action alternative, analysis of the affected environment and of the environmental consequences of the proposed action and alternatives, a list of persons who prepared the document, a list of agencies, organizations and persons to whom the document is being mailed.10

At this point the draft document is circulated for both official and public comment. The lead agency, after considering the comments, then produces the final EIS. There again ensues a comment period, and following this, the lead agency prepares a "record of decision." This is a summary of the agency's decision and indicates the basis for the decision, alternatives that were considered, and so on.

The process is an open one. The turn-of-the-century "muckrakers," who were fond of the expression "sunlight is the best disinfectant," would be quite pleased with the process. It prevents government from acting in secrecy, makes the process open to any concerned citizen, and makes it as practical as possible for interested parties to comment.

The EIS may be a long document, or in the case of a large project, a shelf of documents, often supported by large amounts of data. EIS requirements have brought a fair-sized consulting industry into being. EIS requirements have also provided an enormous amount of employment for attorneys. For the individual or group opposed to a particular project, the most effective action often is to sue. A common basis for suing is to claim a procedural flaw in the environmental review process. The litigant does not necessarily have to show that the project is a bad plan. If it can be shown that there has been some fault in the process itself (that is, a violation of a law or regulation), the project can be stopped until that flaw has been remedied.

To take a well-known example, New York City's Westway project, noted in Chapter 12, was killed by such litigation. In the last chapter of a decade-long saga, a federal judge found that state and federal officials had "colluded" in concealing information about the effect of the project on the Hudson River and, in particular, on striped bass in the river.

Whether the litigants actually cared about the striped bass is a moot point. The complexity of the review process presents numerous opportunities for delaying actions, in this case sufficient delays to kill the project. Critics of the environmental review process have complained that it provides too many legal weapons for naysayers and that it permits small, determined groups to thwart the will of the majority. Defenders of the process argue that the law is meant to be obeyed and that if it has not, the project should be delayed until it is.

The field of air quality planning was essentially brought into being by the Clean Air Act of 1970 and its subsequent amendments. The preparation of SIPs and the evaluation of proposed projects for their effects on NAAQS (see page 324) created the demand for air quality planners. For the biggest moving source, the automobile, Congress itself set the emissions standards rather than delegating that task to the EPA. The emission control equipment on all new cars sold in the United States is there because of requirements that, although periodically modified, date from this time.

The 1972 Federal Water Pollution Control Act (FWPCA) brought into being state and local water quality planning efforts on a massive scale. Specifically, section 208 of the act requires states to produce water-quality plans, either directly or by delegating responsibility to substate governments. Accompanying the planning requirements were substantial sums of grant money to fund the work. The 1972 Coastal Zone Management Act imposes coastal zone planning requirements upon the states. We note that about half of the U.S. population lives in counties that border on a coast, that coastal areas are often ecologically fragile, and that for many reasons, coastal areas can be extremely attractive for commercial and residential development.

 
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