September 28, 2023

Scott Strand

NEPA: Steps Forward

Ensuring a strong future for our bedrock environmental laws

The National Environmental Policy Act of 1969 (NEPA) has been called the “Magna Carta” of modern environmental law. NEPA is the statute that makes protection of the environment part of the mission of every federal agency, whether they like it or not. NEPA is also a critical tool for ELPC’s work, helping us to protect the Great Lakes and our environment. Unfortunately, industrial lobbyists and misguided lawmakers have been seeking to undercut NEPA, to make development easier at the expense of ecosystems. We were glad to see the Biden Administration’s latest fixes for a stronger, smarter NEPA.

What is NEPA?

NEPA is the statute that makes protection of the environment part of the mission of every federal agency, whether they like it or not.

It is the law that requires “major federal actions” to be preceded by an environmental impact statement (EIS), an analysis that measures the likely environmental effects of, say, a new highway, a new powerplant, a new pipeline. It is also is supposed to identify and evaluate reasonable alternatives to a proposed project, to see if there is a less environmentally damaging way to accomplish the purpose and need of the federal action, and to explain how unavoidable adverse environmental impacts can be mitigated. The environmental review process is also supposed to be a primary way for the public to receive information about projects and have the opportunity to comment on them at hearings or in writing.

Fudging the Law to Skirt Responsibility

Over the years, some federal agencies have taken this responsibility seriously; others have not.  For some agencies and project proponents, environmental review is just a bureaucratic “box to check,” an expensive and time-consuming process that adds no real value, and that should be as tightly restricted as possible. That attitude has led to perennial calls for “NEPA reform,” to reduce the situations where environmental review is required, to let project proponents do their own environmental reviews with limited scope and agency supervision, to impose time and page limits, and to eliminate or curtail access to the courts.

Too often, we see abuses like:

• Defining the “purpose and need” of a project so narrowly that it excludes many reasonable alternatives;
• Avoiding analysis of climate impacts altogether, dismissing them as “unknowable,” or pretending that the net climate impact will always be positive, because, if a proposed project is not built, it will just get built somewhere else with fewer environmental regulations;
• Ignoring disparate impacts on environmental justice communities, who have borne the brunt of a lot of our worst polluters;
• Ignoring “indirect” environmental costs, such as the impacts of “upstream” petroleum extraction and “downstream” consumption when considering fossil fuel infrastructure;
• Assuming that voluntary “best management practices” will mitigate all adverse environmental consequences, without identifying what will be required, why one might think it would work, how it will be enforced, and how it will be monitored to determine whether it is successful.

During the Trump Administration, the Council on Environmental Quality (CEQ), which is part of the White House, adopted rules to expressly allow many of these worst practices. Fortunately, those rollbacks to NEPA were largely short-lived, with Biden repealing the worst of the Trump NEPA guidance fairly quickly.

Putting NEPA on the Right Track

Biden’s quick action on NEPA was welcome, and the Administration has also issued several Executive Orders and key guidance documents on climate and environmental justice. At the same time, however, the Biden White House has been actively supporting “permitting reform,” and those proposals have often included changes to how NEPA is implemented.

The debt ceiling compromise bill signed into law in June 2023 included a number of NEPA amendments—more page and time limits, more directives to agencies to “coordinate,” encouragement of greater use of “categorical exclusions,” which are types of federal action that do not have significant potential for adverse environmental effects, and more use of “programmatic” environmental reviews to reduce the amount of work needed for site-specific projects. Most of those changes reflected procedural adjustments that had already occurred, and that has led many of the GOPers who negotiated the compromise to complain that the Administration is not “reining in” NEPA as much as they were supposed to.

Balancing Energy & Environment

ELPC’s experience is that a robust environmental review process improves projects substantially.  NEPA and permitting are not the major barrier to getting renewable energy projects or projects to expand transmission capacity built. Some of the “supply-side progressives” out there are supporting broad NEPA exemptions and general deregulation to get more energy projects built faster.

We can have both renewable energy and clean air and water and protected public lands; it is a “both-and” not an “either-or” proposition.

But our experience is that, without the environmental review process, problems do not get surfaced early enough, bad projects sometimes go through, and unnecessary conflicts end up in the courts. The transition to a renewable energy future does not have to be haphazard or environmentally destructive. We can have both renewable energy and clean air and water and protected public lands; it is a “both-and” not an “either-or” proposition.

The Future of NEPA

More recently the Council on Environmental Quality (CEQ) has proposed new NEPA implementation rules, “Phase Two” of their overall NEPA regulatory effort. (“Phase One” was the repeal of the most negative parts of the Trump rule). The Phase Two rules make a number of very important changes:

• They clarify that the goal of NEPA is not just to create a procedural requirement, but to really compel agencies to take their environmental responsibilities seriously;
• They make it crystal clear that agencies cannot ignore climate and environmental justice issues in environmental reviews and comply with the law;
• They put community engagement, and, in particular, tribal and indigenous community engagement at the center;
• They continue the process of repealing or significantly revising provisions from the 2020 Trump rule;
• They incorporate the changes from the debt ceiling compromise (the Fiscal Responsibility Act of 2023), and several other procedural reforms that reflect modern-day practice; and
• They codify several requirements that had previously just been in CEQ “Guidance” documents, including rules on mitigation and monitoring.

There are some places where the language could be improved, on categorical exclusions, on programmatic reviews, on project proponent preparation of environmental reviews and the proper agency role, and so on. But overall, these rules are good and deserve public support.