Reassembling NEPA

In our last episode in the life of the National Environmental Policy Act (NEPA), the foundational policy of all environmental legislation had been blown up by the previous administration. Their parting shot in December 2020 was ushered in by handing the pen to the oilmen and asking how they wanted all environmental regulations to be managed.

The originating purpose of NEPA was to provide the public, and other stakeholders a seat at the table when some agency, industry, or private entity was proposing a project on public land that would have some impact on the environment. This is a pretty large remit that has jurisdiction on infrastructure projects, such as freeways, bridges, pipelines, and waterways. But it also has jurisdiction on farming, ranching, mining, drilling, and other extractive industries.

NEPA was designed to level the playing field so that projects proposed by large industries or the military did not give the proposing entity an outsized voice in the project’s approval, and that environmental considerations were more encompassing than just the immediate environment of the project. This was to include the environment downstream, and in the air – through implementation of the Clean Water Act, and the Clean Air Act, for example.

It also included direct, indirect, and cumulative impacts. Knowing what we know now (and only had an inkling of in 1978, when NEPA was codified), was that these impact considerations would include climate impacts.

Of course once handed the opportunity to revise NEPA in 2020, industry would have none of this, so most of these provisions were written out of the Act under the rubric of “streamlining.” And instead of industry having to defend the purpose and needs of a proposed project, the burden of questioning any project fell onto the plaintiffs.

There are a lot of moving parts to the 2020 NEPA revisions which would be more interesting to policy wonks. But there are some curiosities; like the weight of the word “significant,” or who would write the Environmental Impact Statements that raised my eyebrows. One clause that raised my eyebrows a bit higher than most was changing the word “people” with the xenophobic phrase “present and future generations of Americans.”

Of course one solution to the 2020 revisions would have been to just rescind them and revert back to the 1978 version. But any regulation having been in effect for 50 years is bound to pick up some dross. And over the years the Act had been festooned with practices and procedures conferring advantage to one interest or another. So what might have been a 100-page Environmental Impact Statement (EIS) in 1980 had become a 1500-page tome by 2001.

And while you might suggest that the excessive detail might inure to conservation interests, in reviewing EISs, I have often found critical details buried in piles of pro-forma text. So the suggestion of “streamlining” does not entirely fall in favor of the proponents of a project.

The reassembly of NEPA is being done in two phases by the Whitehouse Council of Environmental Quality (CEQ) – with lots of public input. The first phase involves rebuilding the armature to include provisions torn out in the 2020 revisions: Cumulative impacts, conflicts in administration, definition of “purpose and need,” and “categorical exclusions” are all on deck.

Phase II appears to be involve the terms of public engagement, including frameworks of Environmental Justice and inclusion – all new considerations since 1978.

Hopefully in the spirit of “Build Back Better,” the conservation legacy of NEPA will be with us for another 50 years.