NEPA at a Crossroads: Rethinking American Environmental Policy

The National Environmental Policy Act (NEPA) has been called the “Magna Carta” of environmental law and is in a large part responsible for the preservation of our nation’s invaluable natural resources over the last five decades. At the same time, others have described it as a “weapon to block development” that “will cause more litigation and delays that raise construction costs, if they don’t kill projects outright.” So which is it? Does NEPA protect the environment, does it kill infrastructure in the United States, or does it do some combination of both? 

Passed in 1970, NEPA is, at its most basic level, an attempt to assess and minimize the environmental impact of projects receiving federal funding. In essence, the law is procedural, simply requiring such projects to perform an environmental review prior to starting construction. When it was originally passed, the portion of NEPA concerned with environmental review was only a single provision in the midst of a much broader attempt to shape environmental policy. However, the rest of the law suffered from vague language which was ultimately unenforceable in court, meaning that enforcement of NEPA today is almost entirely concerned with the environmental review process. 

But despite being perhaps the most well known environmental law, NEPA actually has little to say about what can and can’t be done to the environment. NEPA is enforced in the courts, meaning that anyone can sue for a project to undertake a more extensive environmental review. The system as it exists today is easily exploited and, as a result, the courts are full of superfluous NEPA cases. While the government can still proceed with a project even if it has detrimental effects on the environment, it can be sued and forced to redo its environmental review if it was found not to have been thorough enough.

As a result, these reviews are excruciatingly detailed, to the point that they often take several years to complete and eat a significant portion of the project budget. However, not all environmental reviews are created equal. NEPA stipulates three categories of environmental review, ranging from least to most intensive: Categorical Exclusions, Environmental Assessments (EA), and Environmental Impact Statements (EIS). When people criticize NEPA in the media, they are almost always complaining about the length and cost of EIS. While most federal projects (roughly 95%) get a Categorical Exclusion, the biggest and most important nearly always get an EA (~5%) and subsequent EIS (~1%). The EA acts as a preliminary review, and if a large potential environmental impact is found, an EIS is required. 

Having to complete an EIS is no small task. The Council on Environmental Quality (CEQ) found that across all federal agencies the average EIS completion time was 4.5 years. According to the same report, only 25% of EISs take fewer than 2.2 years. Given such a long timeline for completion, the average EIS runs around 661 pages, with some, such as the draft EIS for Seattle’s proposed light rail project, reaching over 8,000. 

Regardless of its cost and length, some community leaders find enormous value in NEPA. Environmental justice advocate Dr. Mildred McClain, the co-founder of the Harambee House and Citizens for Environmental Justice, has spent a large portion of her career teaching communities how to use NEPA to make their voices heard. In an interview with The Equation, she discussed how, after a project to widen the Savannah River to allow larger ships to pass through was announced, Harambee House “used NEPA to have critical input into the process. We were able to raise issues, review documents and to utilize our own scientists. If it had not been for NEPA, the community would not have been a part of the process.”

However, despite its benefits, NEPA is a blunt tool, not a scalpel. It has been used to prevent everything from coal-fired power plants and oil pipelines to renewable projects like wind and solar farms from breaking ground. The numbers associated with the growing crisis of renewable energy in America caused by NEPA are shocking. According to a report from the Institute for Progress from 2022: “The U.S. has 42 MW of offshore wind production that is operational, 932 MW under construction, and 18,581 MW bogged down in permitting, most of which are waiting on NEPA analyses to be completed.” 

As a result, it is not an overstatement to say that when it comes to the protection of the environment, NEPA may have done more harm than good. The onerous requirements of EIS have resulted in the death of countless valuable federal projects. While it is easy to quantify the effect of NEPA in the cases in which it has actually been enforced in the court, the full impact is impossible to calculate. Fear of EIS and its enormous costs have silently stifled the growth and development of American infrastructure for decades. It is easy to imagine the untold number of projects that have been designated unviable in their infancy due to the looming specter of NEPA. 

Lawmakers in Washington have not been blind to the decline of U.S. infrastructure caused by NEPA. Historically, Republicans have led the charge to eliminate costly environmental reviews. However, recently that effort has spread across the aisle somewhat. The Fiscal Responsibility Act of 2023 (FRA), the bipartisan effort to raise the debt ceiling in June, included long-awaited essential reforms to NEPA. Crucially, according to a report by the Bipartisan Policy Center, the FRA aims to clarify the scope of NEPA and decrease the length of environmental reviews. An EIS is now limited to 150 pages (300 in rare exceptions) and a 2-year timespan, while an EA is capped at 75 pages and 1 year. A project must be categorized as a “major federal action” before NEPA applies, and the FRA clarifies the definition of “major federal action” to exclude several key cases where federal involvement is limited.

Among other reforms, the FRA also includes sections explicitly expediting energy storage projects and the Mountain Valley Pipeline. The latter project, a West Virginia natural gas pipeline, gives clues as to the driving force behind many of these recent changes: Joe Manchin. With his outsize power as a crucial Democratic vote in the Senate, Manchin has tried to squeeze permitting reform clauses into a range of essential legislation over the last few years. While his permitting reform amendments to the National Defense Authorization Act had previously been denied last December, he found his opportunity in the FRA. As a frequent foil to Democratic strategy in the Senate, Manchin has not always been viewed in the most positive light, but his efforts to push for reform to NEPA are essential for reviving American infrastructure.

Beyond Manchin, the Democratic establishment, historically the champions of NEPA, have also recognized the need for reform. All but the most progressive politicians are now in favor of some baseline level of permitting reform. The Biden White House Council on Environmental Quality (CEQ) announced new rules in July designed to build off of the FRA and “modernize and accelerate environmental reviews under NEPA”. In fact, reform of the environmental review process has been a priority of Biden's ever since he took office. The Inflation Reduction Act included $1 billion for federal agencies to expedite reviews and a White House “Permitting Action Plan” released in May of 2022 demonstrated the administration’s resolve to fix NEPA.

Even after taking recent permitting reform efforts into account, NEPA has proven time and time again that it needs to be completely reimagined if we are to make progress as a nation towards a greener future and modern infrastructure system. While the input of local community members and organizations is essential for any major federal project, there is a point at which the law has given them too much of a say. It is clear that even after recent changes, NEPA as it currently stands is well past that point. It is a poorly conceived solution to a real problem, and lawmakers should continue to push for change so that we can better balance the need for new federal projects, especially in renewable energy and green infrastructure, with environmental considerations. 

The image used in this article is licensed under a Creative Commons Attribution-Share Alike 2.0 Generic license. The original image was authored by Tom Shockey and can be found here.