The White House Council on Environmental Quality Recently updated regulationsImplementing the National Environmental Policy Act. The new regulations replace Trump’s misguided attempts to streamline, and they will produce better and more defensible choices.
NEPA has two main goals. First, federal agencies must critically examine impacts before taking action. NEPA doesn’t require agencies to eliminate all effects. However, it does allow them to make informed choices about tradeoffs. NEPA can be described as the “look before leaping” act. Although it does not prohibit jumping, it does require agencies that they look at landings before they take the plunge.
NEPA also directs federal agencies that they inform the public about any proposed actions that could have an adverse effect on the environment. The public can provide feedback on potential impacts, both positive and negative, as well as suggestions for better ways to achieve the desired goal. Before agencies act, they need to consider these comments. NEPA, short for National Environmental Policy, gives you the opportunity to have input into government decisions that impact the air you breathe, water you drink, and lands you explore.
NEPA avoids the dreaded “one size fits all” approach to government. Decisions like whether to allow construction of an interstate pipeline require careful review. They are evaluated in an Environmental Impact Statement (EIS). Most decisions don’t rise to this level and are handled quickly. An EIS is only activated for less than 1 percent federal actions95 percent are the most expeditious NEPAs 3 levels of review.
Additional reforms are worth consideration, provided that they advance NEPAs twin goals. Reviewed over NEPA decisions for 40,000 Forest Service employeesWe found that although most were completed within a reasonable time frame, some were slow and sometimes took years to complete. This could be NEPA functioning as intended, identifying issues and driving reconsideration before a poor decision is made. It could also reflect bureaucratic inefficiencies. So we kept digging.
We looked at the level of analysis and geographic location as well as the project year. We also examined the interaction of 43 activities, including logging and campground improvements. This allowed us to identify potential delays. We found agencies that were hampered by insufficient funding and inadequate staffing. For example, the Forest Service saw its planning budget decrease by 5%. 64 percent difference between 2001 and 2015.This is a contributing factor to NEPA delays. We also found that the Bureau of Land Management spent more time Waiting for informationOperators spend more time reviewing permit applications for oil well drilling permits than it does reviewing them. The problem isn’t NEPAs statutory mandate nor its implementing regulations. Reforms should address the problem and not just the symptoms. If Congress wants expedited permitting, it should fully fund and staff federal agencies.
Critics claim that environmentalists misuse NEPA in order to delay important projects. However, the facts show otherwise. Just recently, the federal government has been sued over NEPA compliance 0.22 percentOf course. NEPA litigants are more successful than other plaintiffs. Environmentalists are known for their ability to choose their battles. They have a high success rate and select litigation. The new rules will reduce litigation risk by focusing on quality decisions and allowing for a cribbed review to consider other options.
Courts have held for years that NEPA requires agencies consider cumulative, indirect, and direct impacts. Agencies cannot allow oil and natural gas development while pretending that the combustion of those resources will not have an impact on our climate or air. That is exactly what the previous administration tried to do. They removed most impacts and invited five lawsuits alleging that the Trump administration’s regulations did not meet the statutes’ requirements. This mistake has been corrected by the new NEPA regulations.
Government should always strive for efficiency. This week’s regulations coordinated compliance with multiple laws that span multiple jurisdictions. Data supports this approach. On average, critical habitat designations for federally-protected species are completed. Three months quickerThese were the exempted decisions from NEPA.
NEPAs benefits can be seen and are driving decisions that are more beneficial to the environment as well as human health. EIS for large oil and gas development projectsAll impact indicators showed a decrease in Colorado, Montana and Utah. The oxides of nitrogen which react chemically to make smog, saw air pollution emissions fall by 24 percent. Fine particulate emissions decreased by 24 percent, while larger particulate emissions fell 23 percent. Over 30 percent of wetland impacts were also reduced. The same review revealed that both job creation and state- and local tax revenue growth increased in the face increased environmental protections. However, the rate of growth did decrease when environmental protections increased.
NEPA has been called “The Magna Carta” of environmental law. The new regulations continue that legacy. Don’t be deceived by false claims.
John Ruple is Professor of Law at the S.J. Quinney College of Law at the University of Utah. He is also a Wallace Stegner Center fellow at the Wallace Stegner Center for Land Resources and the Environment.
Jamie Pleune is an associate law professor at S.J. Quinney College of Law is also a Wallace Stegner Centre fellow.
