A big step forward for the National Environmental Policy Act

The White House Council on Environmental Quality recently updated regulations implementing the National Environmental Policy Act (NEPA). The new regulations replace the Trump administration’s misguided attempts at streamlining, and it will produce better and more defensible decisions.

NEPA has two goals. First, federal agencies must look critically at impacts before they act. NEPA doesn’t force agencies to eliminate all impacts, just to make informed decisions about tradeoffs. Think of NEPA as the look before you leap act. It doesn’t prohibit jumping — it does require agencies to look at the landing before taking the plunge.

Second, NEPA directs federal agencies to tell the public about proposed actions that may impact the environment. The public can comment on likely impacts, both good and bad, as well as suggest better ways to achieve the desired end. Agencies must consider that input before acting. NEPA, in short, ensures that you have a voice in government decisions that affect the air you breathe, the water you drink and the lands you roam.

NEPA avoids the dreaded “one size fits all” approach to government. Decisions, like whether to permit construction of an interstate pipeline warrant careful review and are analyzed in an Environmental Impact Statement (EIS). Most decisions do not rise to that level and are handled quicker. Less than 1 percent of federal actions trigger an EIS and about 95 percent involve the most expeditious of NEPA’s three levels of review.

Further reforms deserve consideration, provided they advance NEPA’s twin goals. In reviewing over 40,000 Forest Service NEPA decisions we found that while most were completed in a predictable and reasonable timeframe, some bogged down, sometimes for years. This could be NEPA working as intended, identifying problems and driving reconsideration before an ill-advised decision is made. It may also reflect bureaucratic inefficiencies, so we kept digging.

We scrutinized the level of analysis, geographic region, project year, and the interaction of 43 activities from logging to campground improvements, identifying factors associated with delay. We found agencies hobbled by inadequate funding and staffing. The Forest Service, for example, saw its planning budget decline by 64 percent between 2001 and 2015, contributing to NEPA delays. We also found that the Bureau of Land Management spends more time waiting for information from operators than it spends reviewing oil well drilling permit applications. The problem is not NEPA’s statutory mandate or its implementing regulations, and reforms must treat the problem rather its symptoms. If Congress wants expedited permitting, Congress should fully staff and fund federal agencies.

While critics contend that environmentalists misuse NEPA to delay valuable projects, the facts say otherwise. The federal government is sued over NEPA compliance just 0.22 percent of the time. NEPA litigants more than other plaintiffs. Selective litigation and above average win rates show environmentalists pick their battles. The new rule’s focus on quality decisions and retreat from a cribbed review of alternatives will only further reduce the risk of litigation.

For years, courts have held that NEPA requires agencies to consider direct, indirect and cumulative impacts. Agencies cannot permit oil and natural gas development and then pretend that combustion of those resources will not impact our air or climate. But that is exactly what the prior administration attempted to do by defining most impacts, inviting away five lawsuits claiming the Trump administration’s regulations failed to live up to the statute’s demands. The new NEPA regulations resolve that mistake.

Government should always strive to improve efficiency. The regulations issued this week coordinate compliance with multiple laws crossing multiple jurisdictions, an approach supported by data. Critical habitat designs for federally protected species that are subject to NEPA review are completed on average three months faster than decisions that were exempted from NEPA.

NEPA’s benefits are tangible, driving decisions that are less harmful to human health and the environment. EIS for a large oil and gas development project in Colorado, Montana, Utah and Wyoming saw reduced impacts to all impact indicators. Air pollution emissions fell by 24 percent for oxides of nitrogen, which react chemically to create smog. Fine particulate emissions fell by 24 percent, while emissions of larger particulates fell by 23 percent. Wetland impacts were also reduced by over 30 percent. The same review found that job creation and state and local tax revenue growth both increased in the face of environmental protections, although the rate of growth did decline when environmental protection increased.

NEPA has been called the Magna Carta of environmental law, and its new regulations renew that legacy. Don’t be fooled by claims otherwise.

John Ruple is professor of law at the SJ Quinney College of Law at the University of Utah, as well as a Wallace Stegner Center fellow at the Wallace Stegner Center for Land Resources and the Environment.

Jamie Pleune is an associate professor of law at SJ Quinney College of Law, as well as a Wallace Stegner Center fellow.

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