Environmental Regulation -- Its Future

"The bureaucratic labyrinth is often inflexible, inefficient. The ski resort industry should come to the table constructively and play a role in helping make the system work."

To some within the ski industry, the subject of regulatory reform is about as attractive as a root canal. Historically, the industry has often watched from the sidelines, seldom sitting at the table, let alone participating, in these legislative and regulatory initiatives. Instead, its members have fought costly, time-consuming, and often wrenching battles on a project-by-project basis. This must end if the industry is to capitalize on future opportunities for improvement.
America stands today at the threshold of a critical transition period for environmental policy. From across the political spectrum, there is increasing recognition that while existing policies have spawned many successes, they have also created a bureaucratic labyrinth which is not just inflexible and inefficient, but often ineffective as well. Countless hours and dollars have not always produced a better environmental product -- a widely held perception in many industries.

From the best selling book "The Death of Common Sense" to the Republican Party's "Contract With America" to the Clinton Administration's plan for "Reinventing Environmental Regulation," the question is no longer whether, but how.

How should environmental policy be reformed to reduce costs and paperwork? How can we promote innovation and encourage sustainable development? How do agencies avoid meaningless minutiae and focus on the more significant issues?

The proposed solutions range from outright elimination of certain federal programs, to radical changes in regulatory philosophy; to the greater use of existing tools such as market incentives, one-stop permitting and regulatory negotiation. There is no shortage of suggestions. What remains is for the participants to choose wisely and then work diligently to implement their choices.

Therefore, in the spirit of NSAA's "future of the Industry" summit, we have set forth below our own list of suggestions for how environmental regulation can be improved. To realize these or other improvements, ski areas will need to take an active role, both individually and through national, regional, and state associations. (See box on next page.) The industry's resources must be allocated wisely, and it must utilize the best expertise available; build new relationships with other players; and be prepared to mobilize its greatest asset -- the skiing public.

Plan Ahead

It is inevitably quicker, cheaper and easier to avoid or resolve problems ahead of time, instead of trying to address them on a substance-by-substance or impact-by-impact basis. Resolving environmental issues through advance planning allows regulations to focus on broad solutions as opposed to incremental problems and provides greater predictability for ski areas. It also encourages people to bridge differences, find common ground and identify new solutions.

A prime example is the forest planning process, through which ski areas and other national forest users can work with the U.S. Forest Service as it designates specific land uses and establishes standards and guidelines to protect the environment. These forest plans have enabled the Forest Service to narrow its analysis and reduce its NEPA documentation for many subsequent, site-specific ski area projects throughout the West. Greater strategic use of forest planning, and its state equivalents in the East, could increase the benefits measurably, as we will discuss in a future article.

Other federal and state agencies are undertaking similar types of advance planning. For example, EPA and the states address air quality impacts in "non-attainment areas" through state implementation plans or SIPs, which set forth mechanisms for bringing the entire non-attainment area into compliance. The Corps of Engineers and EPA are considering the adoption of watershed management plans which would address wetlands disturbance on a watershed-wide basis. And the State of California has adopted a natural community conservation planning program which is intended to preserve ecosystems regionally while allowing compatible use of less sensitive land. Such efforts are to be commended, and ski areas should participate in them actively.

Simplify Procedures

There's an old saying: "process is a verb, not a noun." Unfortunately, some regulators come to treat process as an end in itself, with a seemingly endless parade of notices, studies and documentation, and a corresponding increase in cost, delay and polarization of the public.

For the ski industry, this has often meant higher permitting fees, particularly at the federal level. In some forests, even non-controversial projects can run up NEPA costs to over half a million dollars; the Environmental Impact Statements prepared on several recent ski area expansions are broader, longer and more detailed than those prepared for infinitely more elaborate projects such as the new Denver International Airport. Common sense has too often been lost in a blizzard of documentation.

The solution is to get agencies to simplify and shorten their procedures by narrowing issues, reducing paperwork, setting deadlines and utilizing general permits and approvals wherever possible. This is not just permissible; it is often theoretically encouraged under existing law. For example, existing NEPA regulations specify that an EIS should normally be less then 150 pages in length, and those regulations actually encourage agencies to set time limits for their preparation.

Similarly, existing Clean Water Act regulations encourage the use of nationwide wetlands permits, and impose deadlines for the Corps of Engineers to act upon permit applications. What is needed is for the ski industry and other like-minded groups to foster a greater agency willingness to use these tools.

The benefits of procedural simplification can be seen in the Forest Service's new administrative appeal regulations, which require the Forest Service to decide all NEPA appeals within 45 days. Although sometimes painful, these regulations have cut down on the cost and delay involved in the appeal process, which could previously consume 6 to 12 months or more. With support from the ski industry and other groups, similar deadlines could be applied virtually across the board.

Encourage Innovation

Closely related to procedural simplification is the need for agencies to encourage greater innovation and flexibility in meeting their environmental objectives. Traditionally, agencies have relied upon "command and control" strategies, which set forth detailed standards, permitting procedures, and reporting requirements. In practice, this has often led to excessive regulatory detail and administrative micro-management, which is either inefficient, ineffective or both. This problem is exemplified by EPA's regulations which currently span over 12,000 pages.

Consequently, there is increasing interest both within and outside government, in developing alternative strategies for achieving environmental goals, such as the use of performance standards, market-based incentives and self-certification.

Two notable examples are the development of state voluntary cleanup programs which encourage the cleanup of contaminated property, and state environmental self-audit programs, which encourage the identification and correction of environmental problems.

Other examples include the promotion of wetland mitigation banks, the trading of air emission and effluent allowances and EPA's Common Sense Initiative, under which EPA and designated industries will attempt to reduce costs and improve environmental protection through flexible, comprehensive management approaches.

Individual ski areas should avail themselves of these programs, and the industry as a whole should search for new and more efficient ways to reach environmental goals. One promising approach is the kind of agreement which Vail Associates recently negotiated with the Town of Vail, through which the ski area and the community agreed on a joint program for managing peak periods and mitigating the socio-economic impacts of the Category III expansion thereby reducing the significance of this issue for the Forest Service NEPA process.

Delegate Authority

Times have changed. When the existing federal environmental programs were adopted in the 1970s, there was usually little or no environmental regulations at the state or local level. Now many state and local governments have extensive environmental programs which often overlap with federal regulations. This can be duplicative, confusing and frustrating.

For example, on national forest system land, wetland impacts may be separately regulated by the Forest Service, the Army Corps of Engineers (with input from EPA), a state wetlands authority and even the local government. Similar layers of review can also apply to air and water quality and wildlife impacts. There approvals are required from EPA or the Corps; the decision may be made by officials located hundreds of miles away with little direction knowledge of the project.

Accordingly, there is a need to shift some federal environmental regulation to the state and local levels. This can be accomplished through the delegation of environmental programs, as EPA has done regarding "end of pipe" discharges, or the issuance of general permit, which the Corps is considering where state or local wetland programs exist. This type of delegation avoids duplication and can improve decision-making. States are now well-equipped to understand such reviews and should be encouraged to be so by the industry.

Restore Balance

Perhaps must important, regulatory agencies must resort and retain a sense of balance. One can point to obvious regulatory excesses under existing environmental programs: for example, the hazardous waste land-disposal ban which reportedly required spending $4 million to save one statistical life; or the drinking water standard which limited daily risks to those typically found in two slices of bread. Such efforts not only expend disproportionate resources for minimal benefits, they threaten the consensus needed for effective environmental protection.

For the ski industry this type of imbalance may be found in the belief of some regulators that they have an absolute obligation to eliminate environmental impacts and risks, no matter the cost; that all natural systems are extraordinarily fragile and static; and that recreation should always be subservient to preservation.

In response, the ski industry must avoid the temptation for angry rhetoric and polarization. It must emphasize the positive, as well as the common ground that it shares with the regulators: each values the environment and each services the public. Indeed, ski areas are precisely the type of sustainable, low-impact development that many regulators seem to favor in the abstract, and should favor in the specific.

The ski industry has a number of tools for restoring regulatory balance, such as undertaking collaborative projects with regulatory agencies, working with regulatory personnel to explain market, engineering, and economic realities and encouraging skiers and others to support proposed projects through the NEPA process and its state counterparts. In addition, the industry can point to the many existing statutory and regulatory standards that emphasize balanced decision making, such as the Forest Service's multiple use mandate and the Corps of engineers' public interest test.