December 13, 2003
Fighting over process as a proxy for fighting over substance

You might think that finding an adaptive re-use of previously-built infrastructure would be supported by most people. After all, it’s usually far less disruptive to the existing environment to be able to make use of what’s already there, compared to most alternatives.

When it comes to re-opening a fifty-year-old cross-Texas oil pipeline that hasn’t been used since 1995, however, you would be wrong. 

An Exxon-related company completed this pipeline between Houston and El Paso in 1950, and used it for 45 years. In 1997 Exxon then sold it to Longhorn, another outfit, and they began the process of obtaining the necessary government permits to restore the line to service. 

The idea was to pump about 225,000 barrels of gasoline per day from the Gulf Coast refineries near Houston to El Paso and perhaps neighboring states. 

Considering the truck-based alternatives to shipping that much gas across the Lone Star State, and how difficult it is to build a new pipeline anywhere in the country, on the face of it the idea seems to make perfect sense. 

That didn’t mean it would be a snap to obtain the permits. After all, this re-opening was subject to the National Environmental Policy Act (NEPA). 

Nonetheless, the Federal agencies reviewing the project eventually approved an Environmental Assessment (EA) for it, finding that with some appropriate adopted precautions that there would be no significant environmental impact, even though it crossed several aquifers along the way. 

In the environmental law business, this is called a “mitigated FONSI” (Finding of No Significant Impact).

Most Environmental Assessments are supposed to be fairly short, simple document collections, accompanied by evidence of public involvement in the process of determining if the usually far more complex, time-consuming, and sometimes project-fatal Environmental Impact Statement (EIS) should be performed. 

Not this time:

One and a half years in the making, it consists of four lengthy volumes numbering over 2,400 pages. It incorporates not only the analysis of agency personnel but also studies from independent experts in pipeline operations and safety, endangered species, hydrology, geology, lake and stream modeling, chemistry, risk analysis, and emergency response planning and implementation. It also incorporates the Lead Agencies’ review of over 6,000 written comments and numerous oral comments from six separate public meetings held throughout potentially affected areas in the state of Texas. Its issuance was predicated on Longhorn’s agreeing to employ and maintain a variety of mitigation measures designed to lower the degree of identified risk of impact to acceptable levels. Indeed, in many ways, this EA is more akin to a full-blown EIS; it is unclear exactly what more the Lead Agencies could have done to evaluate the significance of this pipeline’s impact. 

Notwithstanding this level of effort, a wide assortment of environmentalists, local governments, and others challenged the EA, and brought in their own experts to challenge the findings and opinions of the experts used to support the EA. After losing in the District Court, they took an appeal to the Fifth Circuit. 

The appellate panel reviewed the EA, and upheld the decision-making process of the government agencies. There was nothing inherently unreasonable about the conclusions that were reached or the expert opinions relied upon by the government, even though the experts retained by the plaintiffs hotly contested some of the findings. 

[T]he dispute between the Collins plaintiffs and the defendants here is best classified as a classic battle of the experts, with each party asserting that their analysis is more reasonable than the other’s. Under the highly deferential standard afforded to agencies pursuant to NEPA, however, it is not the job of the federal courts to intervene in this fight. The agencies have made their decision. It was not arbitrary and capricious. We are thus obliged to defer to their expert judgment [notes omitted]. 

In affirming the District Court, the Circuit panel gave a remarkably clear-eyed statement of the reality behind this and most other NEPA litigation:

…NEPA does not guarantee any substantive results; all it ensures is that a particular process will be followed. Herein lies the problem for the … plaintiffs. They really don’t want more process. Indeed, considering the extensive and comprehensive nature of the EA conducted here, it is unclear exactly what more process would involve. What they really desire is a substantive result: convinced that it poses a great threat to the health and safety of its citizens and the environment in general, the Collins plaintiffs want this pipeline project killed. Unfortunately for their case, and whatever of the merits of that position, this outcome cannot be secured in this federal court proceeding. The Lead Agencies here have complied with the NEPA statute and its accompanying regulations in every way. They have conducted an exhaustive assessment of the environmental effects of this proposed pipeline and, after consideration, concluded that those effects were not significant. Whether we agree or disagree with that conclusion, we cannot call it arbitrary and capricious. Accordingly, we have no ability to disturb it. [note omitted].

It’s relatively rare to see a judicial opinion express the limits of NEPA litigation in such blunt terms. I expect that it will be repeatedly quoted in future briefs filed by attorneys trying to defend their clients’ projects from those expressing their substantive opposition to a policy decision through the use (and sometimes abuse) of this procedural statute.

December 13, 2003
True rapture

It's been a bit hectic around here lately, especially at work, so posting on the usual schedule wasn't really an option.

On the other hand, I did see an example of true rapture while I wasn't writing for this site.

A few weeks ago a teenager crashed her SUV into the back of our Grand Am that younger daughter was driving home from swim team practice. Fortunately there were no physical injuries, but she's been essentially without wheels since that time, while the car was in the shop being repaired.

On Thursday, I told younger daughter that the body shop finished their work. This freed her from the bondage of obtaining rides from parents and others.

I believe I caught a glimpse of total joy.

December 10, 2003
Holiday gift guides and shameless self-promotion

Combustible Boy, who’s holding down the fort very nicely at The Sound and Fury, recently referred to Dave Barry’s very funny Holiday Gift Guide, which appeared in the Miami Herald on December 7. 

For those who like these kinds of things, here’s a small bit of shameless self-promotion. 

I’ve written similar columns over the last three years about some not-so-fabulous Christmas golf gifts that you may also enjoy.

The beauty part about these gift guides is that neither Barry nor I will ever run out of material for future columns.

December 9, 2003
Not enough votes right now, but there are ways to find them

Just before Thanksgiving I wrote a post about a New Jersey “Blue Ribbon” panel’s recommendation to increase the New Jersey fuel tax by a hefty amount and take other steps to restore the Garden State’s transportation funding structure to something far more fiscally sound than the current mess.

Most of the recommendations were sound. Many states such as Delaware have already adopted them. The one new wrinkle was the suggestion that after the tax was increased to something far closer to New Jersey’s neighboring states, the fuel tax should then be indexed for inflation. I liked that idea, but suggested that for political reasons it would probably be the first suggestion dropped in the upcoming negotiations.

The blue ribbon proposal came out in time for potential action during the upcoming lame duck session in the New Jersey legislature. The Democratic leadership apparently hoped that their Republican counterparts (and any departing Democrats) would help enact the tax increases before anyone in the upcoming legislative session could be blamed for it.

Democrats will control both houses in the next General Assembly session, so any potentially bad political fallout from enacting higher fuel taxes could be, as they say, highly focused.

It now appears that someone’s been doing some vote-counting, because the proposal is now officially dead, at least for this lame duck session:

Gov. James E. McGreevey said today that he would not support a move to increase the state's gasoline tax, essentially killing an effort to raise the tax.

Speaking before the New Jersey Business and Industry Association here, Mr. McGreevey said the state's economic recovery was too tenuous to raise the tax.

"It is the wrong time to increase the gas tax and I will not support it," said Mr. McGreevey, a Democrat.

The newly-announced lack of interest doesn’t mean that the Governor’s Office won’t do what it can to build up support over the next year or two. After all, no one seriously suggests that the transportation funding financial crisis will simply blow over without any new money going to the Trust Fund.

The legislators are just not interested in facing that problem until it’s too big to ignore.

The news story also included some interesting signals from the McGreevey Administration about how it might help create the conditions to encourage enough legislators to develop the will to vote for a tax increase:

"I have directed the commissioner of transportation to go back through his budget, find savings, reduce costs, reduce bureaucracy and re-prioritize the most important safety and congestion projects," Mr. McGreevey said. "We are going to find a way to make this work with the revenues we have.

"At some time it may become absolutely necessary to re-visit this issue, but that time is not today."

The first few directives are what one would expect to hear—“go back through his budget, find savings….”

Nonetheless, the next set of ideas could be truly interesting to observe in operation, if the New Jersey executive branch is as potentially creative as others have been in other states facing similar funding crunches.

“Reducing costs,” for example, could include canceling lucrative engineering or other professional service contracts NJDOT has with politically influential firms. “Gosh, there’s just not enough work, since we have no money to spend on new projects. Awfully sorry.”

“Reduc[ing] bureaucracy,” for example, is a not-too-veiled suggestion to the NJDOT rank and file employees to push for a tax increase, or face the unpleasant prospect of layoffs, hiring freezes, or other workload increases on those remaining.

The last idea is potentially the most creative. If NJDOT actually does “re-prioritize the most important safety and congestion projects,” that means dropping some projects off the list of things to do. I wouldn’t be terribly surprised if the first-dropped projects are those scheduled for the legislative districts of those who express the keenest opposition to fuel tax increases. After all, Asphalt = Votes is an equation that any state legislator understands perfectly.

So when Governor McGreevey says “At some time it may become absolutely necessary to re-visit this issue,” I think it’s also safe to say that his Administration will be in a position to convince others of exactly when that time has arrived.

Or else.

December 9, 2003
Digital cameras and blogging

Glenn Reynolds wrote a good post today about digital cameras and blogging, inspired by a similar piece by Doc Searls.

I take the pictures you see on this site with a Kodak DX4330 digital camera. It’s a remarkably simple, handy camera for blog-journalism—or regular journalism, for that matter, under the right conditions.

For my websites, I use the camera's docking/battery charger device to upload the images to my PC, and then edit the pictures in FrontPage 2002, the web-site creation software.

One of the advantages of this arrangement is that I can resample the image in FrontPage after I crop and resize the image to its desired appearance for the web page. Resampling compresses the picture into far fewer megabytes of data, thus speeding up the page-loading time for those with dial-up connections (Since we only recently upgraded to a cable modem ISP service, I’m extremely sensitive to that issue). 

I also use the camera for the pictures that accompany the newsprint edition of my golf column, but this camera admittedly has its drawbacks for that purpose. Because of its automatic focusing and aperture-setting features, it just can’t squeeze off a stop-action shot like I can with my old 1960s-era Nikkormat 35mm SLR. (It’s only automatic feature is a through-the-lens light meter.)

On the other hand, for the traditional grip-and-grin group shots or similar posed shots, the DX4330 works fine. I just e-mail a cropped, downsized image to the newspaper graphics folks and they take it from there.  

And with experience, one can still manage to capture a decent stop-action picture:

And when you can obtain pictures like this one because you keep a camera handy, somehow it just doesn't matter if someone else might think that's a bit geekish.

December 8, 2003
Three Claudes for a physical fitness headline

For the last several days I've been staggering around the house with an awful code in my nobe and throat. I can hardly breebe sometimes, and I've stopped doing my usual workout routines until this bug's done running its own course.

Maybe my current ailments are why this headline today from the Associated Press seemed so Claude-worthy:

Training Workouts Help Build Strength

Well. Glad they cleared up that mystery.

The story is not nearly as mundane as the headline, thankfully. In fact, the point of the piece was that a focused, shorter workout schedule creates several benefits for most of us, with the possible exception of those seeking to enter body-builder contests.

The shorter workouts won't build pro football muscles, but they will let an ordinary person build strength and stay strong. And if more people fit exercise into their lives on a reduced regimen, experts say the result is a net benefit for society.

If you haven't done any weight-lifting in the past, however, I suggest you start by going to the YMCA or similar physical fitness center and signing up for some hands-on training. Learning how to lift correctly reduces the risk of injury significantly.

I give that headline three Claudes--and now I'm going to make yet another cup of hot tea.