Evolution of The National Environmental Policy Act
Through the 1960s, public concern over increasingly common environmental disasters, the National Environmental Policy Act (NEPA) was drafted and became law under the pen of Richard Nixon on January 1, 1970. The stated purpose of the Act was “To declare a national policy which will encourage productive and enjoyable harmony between man and his environment.”
Out of this blossomed the Whitehouse “Council of Environmental Quality” (CEQ), and the Environmental Protection Agency (EPA) – which became the coordinating agency for the raft of environmental laws that followed – by either administering them (Clean Air and Clean Water Acts), or coordinating with other agencies in the administration of the Endangered Species and Marine Mammal Protection Acts, for example.
This raft of conservation acts was introduced between 1970 and 1973 and became laws by way of a series of almost unanimous votes of both houses of Congress – and then signed into law by President Nixon.
NEPA has given us in the conservation business a handle on proposed projects through the various instruments that the Regulatory Agencies have – and through the requirement that large projects affecting our habitats need to be first submitted for public review. Some of these instruments include Environmental Impact Statements (EIS), Environmental Assessments (EA), and Incidental Harassment Authorizations (IHA).
So under this rubric, NEPA became the hinge-pin of US Environmental Policy – much to the chagrin of industry. And because the “NEPA hinge-pin” has been so instrumental in US Environmental policy, it has also served as the driver through which various administrations have assaulted US environmental regulations.
The first attack was when Ronald Reagan appointed Anne Gorsuch (mother of SCOTUS member Neil) as head of the EPA. She cut the budget by 22%, handed agency tasks off to the states, and hired staff from industries that the agency was charged to regulate.
Then, in a closing act of the Trump Administration, NEPA was rewritten to reflect the needs of industry, under the rubric of “streamlining.” The premise being that providing so many handles the public and environmental organizations encumbers project development. And admittedly there is some merit in this argument. If anyone impacted by a project can stage an obstructing lawsuit to halt it, it is bound to create delays.
In my business we were hoping that the Biden Administration would just roll back the 2020 revisions to the legacy NEPA. This did not happen. Rather they put it on the “operating table,” selectively rolling back some of the more egregious proposals, but holding on to some of the revisions – having to do with “streamlining.”
As I mentioned, there is some merit to un-sticking the public review process; some of the big eNGOs were sending the “Public Comment” link out to their ‘members’ to lodge pre-composed ‘comments,’ so the comment process became polluted. My 35-page, qualified critique, and other assessments from serious stakeholders, became cluttered by millions of “public comments” that all said the same thing.
Without detailing this too much, I’d call this “peeing in the pool” – at an industrial scale.
NEPA is currently being put back in the box. And under the NEPA rubric, the proposed revisions are being reviewed by the public. I didn’t dig into it this time, as I see colleagues more qualified than I on policy issues doing at sterling job of critiquing the proposed revisions.
But I worry that this “streamlining” issue will remain a problem because it is aimed more at rushing “desired projects” like offshore wind farms through, than de-cluttering the NEPA public comment process.
