Suppose a friend calls you up and says he wants you to invest a million dollars in a new company that he heard is going to make tons of money. Before you decide whether to do so, wouldn’t you expect to know what the risks of losing your money might be? Wouldn’t you investigate the people who are going to run the new company and the kind of activities they intend to engage in, so you have a sense of whether it’s a safe thing to do with your money?
That’s the common-sense idea behind the National Environmental Policy Act, whose adoption by Congress kicked off the “environmental decade” of the 1970s.
NEPA requires government agencies to use a transparent process with meaningful public participation to consider the potential environmental effects of their actions before committing to them. It is one of the United States’ bedrock environmental protection statutes and has been so widely emulated in other countries that it has become known as the “Magna Carta” of global environmental law.
In the U.S., however, NEPA has recently been the subject of withering scrutiny and attack by critics across the political spectrum. Its opponents have called for the narrowing of NEPA’s scope and the “streamlining” of its processes, charging that the Act’s core mandate to “look before you leap” has spun out of control and created unintended and massive obstacles to approval of critical infrastructure.
These criticisms have prompted corrosive actions by all three branches of the federal government that have weakened NEPA and impaired its ability to serve its valuable, intended functions.
Congressional actions: Proposals to adopt “permitting reform,” often simply a euphemism for weakening NEPA, have been the subject of congressional debate and legislation for over a decade. Congress adopted a series of subject matter-specific exemptions and provisions to accelerate NEPA review in 1996, 2005, 2014, and 2018.
In the Fiscal Responsibility Act of 2023, it also enacted extensive amendments that authorized the enhanced use of “categorical exclusions” from the NEPA process and required agencies to move through that process much more quickly when NEPA does apply.
Notwithstanding all of these laws, the reconciliation bill currently being crafted in Congress proposes further curtailments to environmental reviews. These provisions include the creation of unprecedented shortcuts for developers, including exemption from judicial review — as long as they agree to pay for and carry out the NEPA analysis process. Because the federal courts have been the primary forum for enforcing NEPA since its inception, this mechanism risks turning NEPA into a “paper tiger” that looks good on the page but has no real teeth.
Executive actions: In 2020 the first Trump administration adopted the first significant revisions to the regulations of the Council on Environmental Quality that govern agency compliance with NEPA since their initial adoption in 1978. These revisions sharply scaled back opportunities for public input, completely contrary to Congress’ intent when it enacted NEPA in 1969. The Biden administration essentially restored the pre-2020 status quo while retaining some of the streamlining the critics desired.
But the second Trump administration seeks a more permanent, more radical, and more dangerous solution. CEQ is trying to repeal in their entirety the regulations that have governed NEPA for over 45 years. Such a repeal would leave individual agencies free to adopt their own, disparate versions of NEPA review, with attendant inconsistencies and uncertainties. In addition, there is little chance that CEQ will call out agencies that take advantage of this new-found discretion to avoid meaningful NEPA compliance.
The Trump administration has also introduced what it calls “alternative NEPA procedures” that ludicrously reduce project timelines, even for major projects, from what would normally require a couple of years to evaluate carefully to as little as two weeks. Such an abbreviated process amounts to not bothering to check out the financial risks before sinking a million dollars into your friend’s investment scheme.
The federal courts: Some of the most alarming erosions of NEPA’s authority are happening in the judiciary. In 2024 a panel of the Court of Appeals for the D.C. Circuit held that CEQ has no authority to issue regulations that bind other federal agencies — even though no party in the case even raised the issue. Although the full D.C. Circuit disavowed that holding, a federal district court in North Dakota subsequently reached the same conclusion.
On May 29 the Supreme Court issued a decision in Seven County Infrastructure Coalition v. Eagle County, sharply cutting the scope of environmental effects, especially indirect effects, that agencies must consider under NEPA. In doing so the Court chastised lower courts for their supposedly excessive interpretations of what NEPA requires of agencies (despite longstanding legal support for such interpretations). It even provided a green light for a court to allow projects to go forward even if that court determines NEPA has been violated. Subsequently, a judge on the Court of Appeals for the D.C. Circuit issued a concurring opinion that blasted NEPA as well as judicial efforts to enforce it, making even Justice Kavanaugh’s critiques in Seven County look mild.
There are two common threads to this surge of NEPA-demonizing actions: the complete absence of evidence that NEPA is the principal culprit for delays in development; and ignorance of and impairment to the core democratizing function of NEPA.
First, the repeated justification for this latest outbreak of NEPA reforms is the argument that the Act has stymied beneficial development, in part because public interest litigants have abused it by bringing frivolous lawsuits whose sole purpose is delay. But astonishingly, critics in all three government branches have provided no empirical support whatsoever for their claims that NEPA is responsible for the delays they decry. In fact, there is more evidence for the countervailing view, that other factors — in particular poor project financing and lack of resources — have constituted the main barriers to project completion.
Second, those who call for “streamlining” regard increasing the efficiency of the NEPA process as the most important, if not the only, goal. But NEPA’s primary goal has never been efficient analysis. Rather, NEPA was established to make government decisions better, through accumulation and consideration of information concerning a project’s environmental risks, followed by tailoring of the project to mitigate those risks, and more democratic, by inviting affected stakeholders to weigh in from a project’s inception about how it might affect the environment and the manner in which they rely on it.
The efforts in each branch of the federal government to rush NEPA review consistently disregard the reasons that Congress adopted NEPA in the first place. Congress directed NEPA in large part at government agencies that were regularly ignoring disastrous potential environmental consequences and shutting out affected people from their decision-making process. These harmful and anti-democratic decisions were particularly committed by agencies with development-oriented missions that viewed environmental concerns as frustrating and unwanted obstacles to desired projects. By completely ignoring this history and the problems NEPA was established to address, its critics seem to be going out of their way to make it easy for agencies and private project sponsors to sweep environmental and health risks under the rug and make it hard for the public to discover that they have done so.
While NEPA’s critics routinely and incorrectly blame the statute for stalling development, they rarely acknowledge the incalculable public benefits that have flowed from NEPA. These include:
-
- The discovery of adverse effects that would have remained hidden from public view until it was too late to avoid them.
- The education of agencies and affected stakeholders that increased awareness of environmental risks and provided opportunities for timely project alterations to minimize them.
- The democracy-enhancing opportunities for public participation.
- And the environmental damage avoided by judicial injunctions halting ill-advised projects approved despite defective NEPA compliance.
That is why actual studies throughout the years have repeatedly found that NEPA has saved money, time, and improved big projects while protecting the environment.
The drive to improve NEPA, particularly for projects that may be environmentally beneficial in the long term like the buildout of clean energy infrastructure, certainly has merit. Indeed, for decades Congress and presidents periodically engaged in sensible efforts to improve NEPA. Nearly all these earlier initiatives, however, focused on promoting not only more efficient processing but also more effective environmental review. Unfortunately, virtually all recent efforts, including legislation passed during the Biden administration, have bought into a myopic focus on hastening review without even considering whether it will lead to worse decisions or erode democracy.
Ensuring environmentally sound and democratic decisions can of course be consistent with efficient permitting and NEPA review. For instance, any new streamlined track should include standards guaranteeing that a project eligible for streamlined review is environmentally beneficial and should ensure that binding mitigation requirements are incorporated into the review process. There may be other kinds of projects designed to promote important social goals, such as affordable housing, that are also deserving of expedited review. Deciding which projects to subject to a streamlined review process requires careful consideration of how best to balance competing social goals. We have not seen anything close to that kind of debate among policymakers for a long time.
No public policy mechanism can be expected to work flawlessly. NEPA is no exception. Experience in implementing the statute since 1970 surely provides valuable lessons that can provide the foundation for improvement in its review and disclosure processes. It is critically important, though, that neither policymakers nor the public lend their support to quick fixes lacking in evidence and strident denunciations that wind up trashing a law that has served the nation so well.
The opinions expressed above are those of the authors and do not necessarily reflect those of The Revelator, the Center for Biological Diversity or their employees.
