Dale, the NEPA process applies to all your examples. Of course the lead agency doesn't have to implement public comments, but they do have to consider them and explain how they were considered in the decision document. ...
Yes it applies, to record comments after the planning process and only to proposals an agency intends to implement. If an agency drops a proposal, it not longer faces a requirement to implement the NEPA process for that proposal. Agencies can be required by NEPA to solicit, record and publish public comment on a specific proposal. There is no enforcement authority in NEPA to alter agency planning to respond to that public comment.
From
A Citizen's Guide to the NEPA
Having Your Voice Heardhttp://ceq.hss.doe.gov/nepa/Citizens_Guide_Dec07.pdf'Commenting is not a form of "voting" on an alternative. The number of negative comments an agency receives does not prevent an action from moving forward.'
NEPA provides hoops you can might make agencies jump through after a plan has been proposed or implemented. It does not give you a vote, change a law or
allocate an adequate budget for a desired alternate action.
If you have identified an action that has been taken that you think would have required a NEPA process, you need to identify the relevant authority to convince that a NEPA process was necessary for that action to enforce the NEPA process for that specific action that was not propoerly commented. If you think implementing wag bags is a NEPA issue, you should find out who to convince that a NEPA process was required for the wag bag implementation and seek NEPA enforcement. The NEPA doesn't require implementation of the NEPA process for actions no longer proposed and not taken.
What do you think the arguments are for requiring the NEPA process for the wag bag implementation?
Who have you identified as the relevant authority to enforce NEPA compliance based on these arguments?
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But organized groups are another matter. They tend to have expertise on the matter at hand and resources to fight it out in court.
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One of the reasons organized groups have more clout is that they follow the issues by watching the planning process and participating there instead of waiting until after the planning is done and merely commenting after a proposal has passed to the NEPA process. Another reason is that they know who has relevant authority and apply their resources there. When the Congress passes laws and designates where they apply (like 'wilderness'), the executive branch of government is required by law to enforce such laws. If you bump into that enforcement and don't like it (or the court's interpretation) the relevant authority to change the law is Congress.
Dale B. Dalrymple
