The Trump administration sparked controversy  in January when it announced plans to alter the way environmental reviews are conducted for new building projects. Much of the reaction has focused on the move as a straightforward rollback of environmental protections, but the truth is more complicated. The federal government’s current environmental review practices do need serious reform, but if the reforms are not carefully designed, they could prove pointless.
At issue is the National Environmental Policy Act. Enacted 50 years ago as part of the first major wave of environmental legislation, the law was intended to force federal agencies to minimize the environmental harms of their own infrastructure projects (such as highway construction) and take these harms into account in federal land management and permitting decisions. To ensure that federal agencies did not simply give lip service to these considerations, the law also included several “action-forcing” provisions requiring agencies to follow certain procedures, produce written environmental impact statements and justifications of their decisions, and allow private parties the ability to sue if they felt the agency’s analyses were incomplete or procedurally flawed. If courts ultimately agreed, the suing parties could recover their attorney’s fees.
Reducing the government’s environmental harms is a worthwhile goal . Today, however, NEPA has grown into something far beyond what was originally anticipated. When NEPA was passed, it was expected that the required impact statements would be short (no more than 150 pages) and quick (taking no longer than a year to complete). But over the years, the length of the analyses has grown, and the time it takes to complete them has multiplied.
The average time to prepare an impact statement is now around five years , and the average length is over 600 pages.
These increases are largely driven by litigation: Agencies must consider an ever-wider range of possible impacts in an attempt to avoid getting sued. Instead of using the review process as a way to minimize harm, some environmental groups try to use the cost of the process itself as a way to kill projects.
The Trump administration proposal aims to return NEPA review to its original scope. The new proposal makes several significant changes. First, it exempts “non-major” projects from the requirement to perform an assessment. The proposal would also clarify that assessments do not need to take into account the indirect effects of a project. For example, the analysis for the construction of a new road would not need to consider how the emissions from vehicles driven on the road would affect sea level rise due to climate change. It also imposes a two-year time limit for impact statements.
While the NEPA process is in need of reform, the administration needs to be thoughtful in determining whether a proposed change will actually achieve the intended goal. Some reforms, while potentially beneficial, may only work if paired with others that get to the root of the problem. Mandatory time limits, for example, may be counterproductive if they do not also address the litigation aversion that lengthens the process in the first place. For NEPA to function properly, there needs to be certainty that a thorough analysis can be done quickly without leaving it open to reversal by the courts, something that would only add to the overall delay.
Keeping the analysis narrowly focused on its original goals may be a more effective way of preventing the NEPA process from turning into an endless bureaucratic nightmare. If properly designed, the newly reformed NEPA need not leave the environment any less protected than before.
- “sparked controversy”: https://www.nytimes.com/2020/01/09/climate/trump-nepa-environment.html
- “a worthwhile goal”: https://greenscissors.com/
- “around five years”: https://www.natlawreview.com/article/trump-administration-proposes-sweeping-reforms-to-national-environmental-policy-act