Author: Robert Walker, contact email robert@robertinventor.com

NASA's legal requirements under NEPA to consider substantive public comments - and four NEPA requirements that your EIS doesn't seem to meet

To NASA: I’d like to remind you that you have a legal requirement to consider substantive public comments such as mine in the final PEIS . § 1503.4:

An agency preparing a final environmental impact statement shall consider substantive comments timely submitted during the public comment period.

My aim with the open letter and my survey is to do everything I can to help make sure voices and concerns of the public are heard. My wish is that this will encourage space agencies to do a rigorous scientific review with full public involvement.

The publlic were not adequately involved in this EIS nor were other agencies. Given the number of issues in this EIS, the simplest solution is to withdraw the EIS then you can find a way forward in your own time.

As I explain in the open letter, if we all work together to find a new way forward,I believe this will be of benefit to NASA, improve the science return on the mission, enable space colonization enthusiasts to get the answers they need faster, and can be done with a far simpler Environmental Impact Statement similar to sample returns from asteroids or comets, without risks of future public opposition and challenges.

You’d need to ask a NEPA lawyer for details. However just based on statements by the CEQ and the legal literature on NEPA, not based on any personal expertise, there seem to be many serious legal issues with this draft Environmental Impact Statement.

If it goes as far as a final PEIS I think your current approach fails on at least four of the main NEPA requirements on an EIS:

[I now cover this in more detail in the

requirement to maintain scientific integrity § 1502.23 [Links directly to the legal text]. For instance, with cites that directly contradict the sentences they are cited to.
provide rigorous analysis of reasonable alternatives § 1502.14 - no discussion of the alternative to delay the mission until you have a better way to protect Earth as suggested by Chester Everline (Comment posted December 20th), and a one sentence dismissal of the alternative to sterilize the samples first (MSR FINAL EIS : 4–2) as suggested by myself (Comment posted on May 16th) and seven others in the first round of public comments
This requirement extends to any reasonable alternatives submittted in a timely fashion during the public comments periods § 1502.17
consider all major points of view on the environmental impacts . § 1502.9 - the EIS presents the view that there is no significant risk of environmental effects (MSR FINAL EIS : 3–16), and doesn’t alert the reader even to the existence of major points of view in sources such as the NRC Mars sample return study in 2009 (Assessment of planetary protection requirements for Mars sample return missions : 48), the ESF Mars sample return study in 2012 (Mars Sample Return backward contamination–Strategic advice and requirements : 28) and indeed the entire body of the previous planetary protection literature to date including the views of Carl Sagan (The Cosmic Connection – an Extraterrestrial Perspective) and Joshua Lederberg (Parasites face a perpetual dilemma), American pioneers in planetary protection from the late 1950s onwards. This is a consensus indeed in all the Mars sample return reports, far more than a major point of view.
use an interdisciplinary approach integrating the natural and the social sciences. § 1507.2 - previous studies such as the ESF study emphasize the need to set up fora dedicated to ethical and social considerations of the risk at an international level open to representatives of all countries and to have transparent methods to communicate accountability, benefits, risks and uncertainties (Mars Sample Return backward contamination–Strategic advice and requirements : 59). This was not done.

Also many of the errors I found show you haven’t followed an interdisciplinary approach. Your decision to close down the interagency panel Review and Assessment of Planetary Protection Policy Development Processes : page 26) and your planetary protection office (With planetary protection office up for grabs, …), against the recommendation of the Space Studies Board (Review and Assessment of Planetary Protection … : 61 - 62) surely contributed to this lack of a sufficiently broad interdisciplinary approach.

I mentioned many substantial issues that you haven’t responded to yet in the draft EIS or in any other way.

I alerted you to the issue that a BSL-4 can’t meet the requirements of the ESF study in the first round of public comments

Are you aware of the ESF Mars Sample Return study (Ammann et al, 2012:14ff)? It said "The release of a single unsterilized particle larger than 0.05 μm is not acceptable under any circumstances”. This is to contain starvation limited ultramicrobacteria which pass through 0.1 micron filters (Miteva et al, 2005). Any Martian microbes may be starvation limited.

This 100% containment at 0.05 microns is well beyond capabilities of BSL4 facilities. Even ULPA level 17 filters only contain 99.999995 percent of particles tested only to 0.12 microns (BS, 2009:4).

… (Comment posted on May 16th by Robert Walker to NASA’s first request for comments on their plans)

This issue is not discussed in the EIS, and is not mentioned in the section responding to the first round of public comments. The EIS doesn’t cite the 2012 ESF Mars sample return study, although it is the most recent major study on the topic of a Mars sample return.

Previous cases have lost the legal challenge just because they didn’t adequately consider reasonable alternatives. My proposal to return samples to a telerobotic facility above GEO was already mentioned in the submission in May 2022

I propose two possible solutions in my article.

1. sterilize samples during the return journey, perhaps with nanoscale X-ray emitters. Present day life in the sample would be recognizable after sterilization OR

2. return unsterilized samples to a safe orbit where astrobiologists study them remotely using miniature instruments designed for life detection on Mars. Return sterilized sub-samples to Earth immediately;

As a safe orbit, this paper recommends the Laplace plane above GEO where ring particles would orbit if we had a ring system.

… (Comment posted on May 16th by Robert Walker to NASA’s first request for comments on their plans)

This reasonable alternative isn’t considered in your discussion of public comments in the draft EIS.

The Council on Environmental Quality clarified that the requirement to consider reasonable alternatives persists even after its narrowing of scope in its 2021 revision of NEPA

It is surely reasonable to look at an alternative that doesn't meet all the criteria set in NASA's own mission plan but that achieves greater science return at lower cost than NASA's plan.

A properly drafted purpose and need statement should lead to consideration of the reasonable alternatives to the proposed action, consistent with NEPA's requirements. See 42 U.S.C. 4332(2)(C), 4332(2)(E). CEQ disagrees with commenters assertions that consideration of alternatives that do not meet an applicant's goals or cannot be implemented by the applicant will always waste applicant or agency resources or result in delays. There may be times when an agency identifies a reasonable range of alternatives that includes alternatives—other than the no action alternative—that are beyond the goals of the applicant or outside the agency's jurisdiction because the agency concludes that they are useful for the agency decision maker and the public to make an informed decision.

Always tailoring the purpose and need to an applicant's goals when considering a request for an authorization could prevent an agency from considering alternatives that do not meet an applicant's stated goals, but better meet the policies and requirements set forth in NEPA and the agency's statutory authority and goals. The rule of reason continues to guide decision making in such contexts.

The revision clarifies that agencies have discretion to consider a variety of factors when assessing an application for an authorization, removing the requirement that an agency base the purpose and need on the goals of an applicant and the agency's statutory authority

[however]

It is contrary to NEPA for agencies to “contrive a purpose so slender as to define competing `reasonable alternatives' out of consideration (and even out of existence).” Simmons v. U.S. Army Corps of Engineers, 120 F.3d 664, 666 (7th Cir. 1997) (citing 42 U.S.C. 4332(2)(E)). Constricting the definition of the project's purpose could exclude “truly” reasonable alternatives, making an EIS incompatible with NEPA's requirements. Id. See also, e.g., Nat'l Parks & Conservation Ass'n v. Bureau of Land Mgmt., 606 F.3d 1058, 1070 (9th Cir. 2010) (“Agencies enjoy `considerable discretion' to define the purpose and need of a project. However, `an agency cannot define its objectives in unreasonably narrow terms.'” (internal citations omitted)).

(CEQ, 2022, National Environmental Policy Act Implementing Regulations Revisions – Supplementary information).

In that passage, the CEQ reasserts that it is not enough to mention reasonable alternatives, they also need adequate consideration. The CEQ also mention National Parks v. Bureau of Land Mgmt, 606 F.3d 1058 (9th Cir. 2009).

Looking at the details of National Parks v. Bureau of Land Mgmt,, the relevant EIS did mention many reasonable alternatives but dismissed them because of narrowly drawn up project objectives. The justices ruled:

Agencies enjoy "considerable discretion" to define the purpose and need of a project. Friends of Southeast's Future v. Morrison, 153 F.3d 1059, 1066 (9th Cir. 1998).

However, "an agency cannot define its objectives in unreasonably narrow terms." City of Carmel-By-The-Sea v. United States Dep't. of Transp., 123 F.3d 1142, 1155 (9th Cir. 1997).

You use a similar approach of a narrowly drawn up needs section. Your “Need for the proposed action” has a requirement to return unsterilized samples to Earth for “safety testing”

These same principles regarding the importance of using terrestrial laboratories to enable the best scientific return also apply to the care and attention to detail that would be required to conduct a proper and comprehensive sample safety assessment in the proposed SRF [Sample Receiving Facility].

(MSR FINAL EIS : S-2)

This need for safety testing is used explicitly to rule out the reasonable alternative of sterilizing the samples before they reach Earth in your section on response to public comments:

Consideration of techniques to assess samples and for sterilization prior to returning to Earth

…

The MSPG2 report notes that the process of successfully completing the MSR Sample Safety Assessment Protocol involves a variety of complex operations that would not be feasible on Mars

(MSR FINAL EIS : 4–2)

There is no need to do the MSR Sample Safety Assessment Protocol if all samples are examined unsterilized in orbit and are sterilized before they reach Earth. That’s because there wouldn’t be any need for a Sample Receiving Facility with any contact with Earth's biosphere, except as a place to store safe sterilized samples for study at a central location and for distribution to laboratories.

Note also that the regulations say:

The lead agency shall work with the cooperating agencies and shall obtain comments as required in part 1503 of this chapter. To the fullest extent practicable, the draft statement must meet the requirements established for final statements in section 102(2)(C) of NEPA as interpreted in the regulations in this subchapter.

If a draft statement is so inadequate as to preclude meaningful analysis, the agency shall prepare and publish a supplemental draft of the appropriate portion. At appropriate points in the draft statement, the agency shall discuss all major points of view on the environmental impacts of the alternatives including the proposed action.

§ 1502.9

This is clearly the situation for this draft as explaind here. If it did go any further it needs supplemental drafts.

It would take an expert in US environmental law to confirm, but previous cases seem to suggest considerable legal jeopardy for NASA to define its need section so narrowly.

If not legally challenged, or it survives legal challenges under NEPA it’s even more damaging for NASA if it is stopped under the presidential directive NSC-25, which requires the president to order

a review of large scale effects that could be reasonably expected to result in allegations of major or protracted effects.

It has to be done even if the agency feels confident such allegations are false (Presidential Directive NSC-25: Scientific or Technological Experiments with Possible Large-Scale Adverse Environmental Effects and Launch of Nuclear Systems into Space)

The worst case for NASA may be that nothing is done until the 2030s when with mounting public concern, as experts from many disciplines examine the EIS again they find the many mistakes I’ve outlined here, and you are stopped by a bill in Congress. The space lobby is strong but so also are the farmers, fishermen, public health etc and they have far more legislators behind them. There would be little you could do and it would be far more damaging to the science value of the mission and to your reputation.

If you can change course now, NASA will have far more flexibility to find a way forward.

Author: Robert Walker, contact email robert@robertinventor.com