On January 1st, 1970, Congress passed into law the National Environmental Policy Act (NEPA). Billed as the “environmental Magna Carta”, NEPA marked the early stages of the country’s environmental policy agenda, and mandated that all federal agencies must perform environmental assessments (EAs) and environmental impact statements (EISs) for public land being managed or developed in any significant way, and should state any environmental impacts that could result from federal action on the land.
Apart from its landmark status as an environmental oversight measure, NEPA was also lauded for its inclusivity. Since its inception, NEPA has encouraged public input on federal actions concerning public lands, including Federal forests. The public has been able to view, comment, and question EAs and EISs, with the hope that this involvement will create a more holistic outcome for those who would ultimately be impacted by any proposed changes. This has been made even more inclusive by the presence of NEPA documentation on the internet.
However, for all the inclusion within NEPA, it is the exceptions which give those who work on public lands pause. NEPA does not apply to federal courts, Congress, or the President, a clause which has caused problems when butting up against other environmental legislation, namely the Antiquities Act.
Like NEPA, the Antiquities Act (signed into law in 1906 by Teddy Roosevelt), gave the President authority to, by presidential proclamation, create national monuments on public lands in order to preserve and protect natural and scientifically relevant areas. Although presidential powers related to the Antiquities Act have been reduced twice (both accounts were state specific), overall the President has almost unchecked power from Congress, the courts, or the public when designating monuments in this way.
At their hearts, both the Antiquities Act and NEPA want the same thing, to, as NEPA puts it, “preserve important historic, cultural, and natural aspects of our national heritage”. The Antiquities Act, due to its rapid nature, does not require or allow EAs or EISs, and thus, does not have to abide by NEPA, eliminating public comment on public land designation.
NEPA considers citizen opinion, and even releases EA and EIS documentation for public consumption, although this too can cause problems. EA and EIS reports are long by design, often reach into the hundreds or thousands of pages, can cost millions of dollars to complete, and include complex, sometimes contradictory, figures that can be impenetrable to a public audience. NEPA documentation has gotten to the point of alienating, rather than inviting, public comment through reports filled with bloat and jargon.
Neither NEPA or the Antiquities Act is perfect, and neither seems to have total consideration regarding public opinion. The key difference between the two is the level of oversight. The public, those who would use and benefit from lands attributed under NEPA, act as a balance to the federal agencies governing the process. This balance is not present in the Antiquities Act, and gives authoritative power to the President, eliminating any sense of public involvement regarding the lands they will ultimately become the beneficiaries of.
It is in the best interest of all those who reap the benefits of federal legislation leading to preserved natural spaces that the public be informed and have a period of response regarding new projects, founded through NEPA, the Antiquities Act, or otherwise. Anything less creates an environment where the needs of the few are put before the needs of the many. No judicial or legislative action has been taken regarding the Antiquities Act’s evasion of the public process, which undercuts the very notion of preserving lands for public use.
The appropriate use of the Antiquities Act, however noble, has come under serious scrutiny by Congress. Modern environmental laws such as NEPA, the Clean Water Act, the Endangered Species Act, and the National Forest Management Act (just to name a few) have become the primary statutes to protect and manage America’s incredible natural resources.
The wealth of governmental agencies managing federal lands begs the question about why the Antiquities Act, which has operated under the executive actions of Republican and Democratic administrations for the better part of a century, is not subject to public review as any other federal agency action would be. Presidential designations under the Antiquities Act should fall under the same strict guidelines for ecosystem health and forbearance that NEPA does. Only then can federal agencies truly be involved in community discourse about the future of the country’s public lands.