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NEPA 50 Years Later: Where Do We Go From Here? (Looking Back to Move Forward)

Friday, December 20, 2019

January 1, 2020, will mark the 50th anniversary of the National Environmental Policy Act and the launch of modern environmental law. In 1970, NEPA represented great hope and promise for a sustainable environment; it provided an environmental vision for a federal decisionmaking process grounded in thoughtful, science-based analysis of impacts, broad public engagement, careful consideration of alternatives, and mitigation to avoid the worst effects. While much has changed in the ensuing 50 years, the foundation established by this groundbreaking law is central to our understanding of what decisionmaking in a democratic society should look like.

NEPA’s power is in the environmental substance and the mechanisms for collaboration that it brings to the table in order to help preserve the planet for future generations. As we envision the next 50 years of environmental law and the complex array of environmental challenges we face, reinforcing NEPA and capitalizing on its best elements would enhance our ability to tackle our environmental challenges. This will only be possible if we can avoid the pressures to further eliminate NEPA compliance or turn it into a mere box-checking exercise.

ELI 50th anniversary logoNEPA’s Vision: In 1969, when Congress was grappling with the framework of what became NEPA, its members and the public were struggling to understand the complexity of environmental ecosystems and the scope of the problems that resulted from a lack of forethought and decades of mismanagement. The Santa Barbara, California, oil spill in January 1969, which spread oil across hundreds of square miles of beaches and sanctuaries, was a stark example of the consequences of government proceeding without careful examination. The Council on Environmental Quality’s (CEQ’s) 25th Annual Report explains that in issuing relevant permits for the problematic oil rig, “the federal government had largely ignored the need to protect commercial, recreational, aesthetic, and ecological values of the area.” Yet, the Santa Barbara spill was not an isolated incident. The backdrop for NEPA also included visions of the infamous Cuyahoga River in Cleveland bursting into flames; Rachel Carson’s book, Silent Spring, documenting the impact of DDT and other pesticides on the ecosystem; rivers such as the Potomac serving as open cesspools; and much more. The public was alarmed and Congress was motivated to find a solution.

NEPA passed Congress with strong bi-partisan support and was signed into law by President Richard Nixon. As Sen. Henry (Scoop) Jackson, a primary architect of NEPA, stated in presenting the Conference Report to the Senate:

If we can send men to the moon, we can clean our rivers and lakes, and if we can transmit television pictures from another planet, we can monitor and improve the quality of the air our children breathe and the open spaces they play in. The needs and the aspirations of future generations make it our duty to build a sound and operable foundation of national objectives for the management of our resources for our children and their children. The future of succeeding generations in this country is in our hands. It will be shaped by the choices we make. We will not, and they cannot escape the consequences of our choices. Senator Jackson, 115 Cong. Rec. 40417 (1969).

NEPA was a recognition that, as a nation, we needed to confront environmental protection with the same purpose and focus as we evince when approaching economic development and other challenges, that dealing with environmental problems after-the-fact had disastrous results for the nation. NEPA’s purpose and Congressional Declaration of National Policy spell out the features intended to position the federal government to confront environmental challenges, and those same features are needed as we look to the challenges we face in the next 50 years.

The purpose of encouraging “productive and enjoyable harmony between man and his environment” is often-referenced as a NEPA goal. However, equally important is its purpose of promoting efforts that will “prevent or eliminate damage to the environment . . . stimulate the health and welfare of man; [and] enrich the understanding of ecological systems and natural resources important to the Nation . . .” The importance of having a vision and collecting data to understand and effect positive, federal outcomes is apparent.

The Congressional Declaration provides further that

[I]t is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures . . . in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.

This broad vision combined with the action-forcing framework for a system of interdisciplinary, environmental analysis created the federal culture and infrastructure that have largely served us well for 50 years. The framework of data-based analysis of environmental effects, consideration of alternatives and opportunities for mitigating impacts, and engagement of key stakeholders were critical pillars of NEPA that Senator Jackson and other proponents believed would give the government the tools to avoid and overcome the environmental catastrophes plaguing the nation. Working together and under the leadership of the CEQ, these pillars were designed to provide a counter-force to the strong internal and external pressure on government officials to proceed with or allow desired projects despite their impacts.

NEPA’s Implementation: As always, the devil has been in the details. From the beginning, the federal agencies and key stakeholders jockeyed to test just how far the law would go in changing the behavior of the federal government. Those wanting to avoid the mistakes of the past—and their adverse public health and environmental consequences—advocated for expansive use of the new law. In contrast, some agencies and project proponents were slow to fully embrace the spirit of the law and continue to search for ways to avoid one of NEPA’s most powerful tools, the Environmental Impact Statement.

The Final CEQ regulations attempted to harness the ideals of the statute into a workable framework and, over the first two decades or so, the principles governing the NEPA program emerged from court decisions interpreting and reinforcing the legal provisions. As Jim McElfish describes in his recent Environmental Forum article, The NEPA Rules Versus the Federal Courts, the courts have been instrumental in fleshing out the legal landscape, and the principal tenets of NEPA are familiar. Agencies must take a “hard look” at the direct, indirect, and cumulative effects of their actions; they must consider reasonable alternatives and appropriate mitigation; and they must provide a reasonable opportunity for public participation. While the rules are known, what they require in particular circumstances can be challenging. The ways in which they can be satisfied, given the internal time and resource pressures on an agency staff as well as external and political pressures from the project proponent and its supporters, can also be daunting.

Despite this context, all federal agencies have some personnel and funding allocated and significant agencies have internal guidance to assist in fulfilling their obligations under NEPA. An ecosystem geared toward integrating environmental considerations into federal decisions exists and the outcomes are often improved. In fact, as a general matter, NEPA compliance for most federal actions is routine and uneventful. As noted in a letter submitted to the House Natural Resources Committee by 118 Natural Resources Law professors, roughly 99% of NEPA compliance for thousands of federal actions occurs through the truncated framework offered by the categorical exclusion or environmental assessment processes.

Yet, for 50 years, there has been a high degree of controversy associated with the NEPA program and an endless series of reform efforts to address the concerns. Sharpening operations to avoid unnecessary delays is a worthwhile goal but must be done while ensuring the health, safety, security, and protection of the environment and affected communities. Reform efforts that lose sight of NEPA’s goals create the problems NEPA was designed to avoid. The 2010 Deepwater Horizon explosion, which killed 11 workers and resulted in 210 million gallons of oil spilling into the ocean, was enabled, in part, by a combination of 1970s statutory exemptions from NEPA to facilitate offshore oil and gas drilling in the Gulf of Mexico and categorical exclusions issued by the Minerals Management Service. This is a tragic example of what happens when the pressure to move quickly is a dominant driver.

The Trump Administration has a number of reforms underway, primarily focused on speeding up actions or eliminating review at the project level through categorical exclusions and by fully taking advantage of statutory exemptions. As we approach NEPA’s 50th anniversary, it is a good time to take stock of what we have learned from NEPA’s implementation. Has the statute lived up to its promise? Has it performed equally for all communities? What do we need from the NEPA of the future, and are past reforms leading us in the right direction? Are there tools that can assist in addressing reasonable concerns about operational delay that would still provide sufficient environmental and public health protection? Are there aspects of the NEPA landscape that we should revisit?

What we need from the NEPA of the future: Environmental issues today are more complex and interconnected than we imagined 50 years ago. While we have made considerable progress in many places in cleaning up our air and water, removing toxic chemicals from our environment and products, providing greater protection to our species, and infusing an environmental ethic into many government and business operations, much remains to be done. We have the unfinished business of nonpoint source pollution, legacy contamination from orphan and unaddressed sites, and environmental justice communities that continue to bear disproportionate environmental burdens. We also have new and emerging problems with PFAS and plastics, a global economy that carries with it global problems, and the overarching and interconnected problems associated with climate change, from rising seas, wildfires, shifting species and populations due to rising temperature, and ocean acidification, among other things.

The NEPA of the future can be part of helping to tackle these and other problems. Here are a few ways in which future problem solving can build on existing NEPA tenets and a few adjustments that would be beneficial.

  1. We will still need mechanisms for considering environmental effects and driving development of robust science and interdisciplinary approaches to solutions. Smart assessment tools, the ability to process large volumes of data, and other advances in technologies will enable the collection and processing of more data covering broader areas. This should result in better understanding of impacts in a more timely manner. Broad use of smart technologies and other innovations could be the basis for improving NEPA operations.
  2. We will still need a mechanism to ensure that reasonable alternatives and mitigation are considered in the planning process. We need improvements in ensuring that the poor and powerless are not expected to bear the burdens of society’s decisions as Vernice Miller-Travis describes in her recent Forum article, Promises to Keep.
  3. We will still need to ensure that significant federal actions facilitate the engagement of expert agencies, state and local officials, and affected communities. Broad-scale deployment of renewable energy and adaptation solutions associated with the changing climate are two examples of essential actions that may affect the economic, social, and cultural heritage of communities. The NEPA process combined with other engagement tools can be useful for developing workable solutions. It is also flexible enough to recognize that today’s environmental protection ecosystem is not limited or solely dependent on federal government action. The private sector, nongovernmental organizations, and state and local communities are playing burgeoning roles that can be an important part of the solution.
  4. We will need to ensure that agencies have a sufficient staff of experts and funding to support timely implementation of the NEPA requirements and training. Untrained and understaffed agencies cannot utilize NEPA in the way it was intended or in the way we will need to deploy it in the future.
  5. Given the challenges we face, is it time to reconsider the Supreme Court’s statements that NEPA is a procedural statute and courts cannot enforce its substantive instruction. Prof. Sam Kalen, among others, have argued that NEPA’s full potential was undercut by early Supreme Court cases, including Vermont Yankee Nuclear Power Corp. v Natural Resources Defense Council, that first stated, in dicta and without analysis, that NEPA was merely a procedural statute that mandated federal agencies analyze the effects of their actions but did not mandate how the agencies would address the effects once identified. Professor Kalen notes that later Supreme Courts have latched on to the conclusion but none have grappled with the statutory language and legislative history. He and other scholars contend that NEPA, with its emphasis on future generations, was intended to be a greater force in tackling complex environmental problems and could still be called into service as we address current and future challenges.
  6. At approximately 94%, categorical exclusions currently dominate NEPA compliance. As the scope of categorical exclusions and other exemptions have expanded to include greater impacts, a study of the impacts associated with the use of exclusions and exemptions should be conducted to determine whether current trends are advisable. In fact, it is worth discussing whether the nation is already over-using tools that remove the public from the project-specific process, in the case of categorical exclusions, and limit the analysis of impacts and alternatives, in environmental assessments.

NEPA offers a framework for interdisciplinary analysis, structures for collaboration, and the flexibility for iterative processes and adaptive management that will be needed to learn, respond, and adjust to complex problems. Its greatest value is in the robust analysis and rich dialogues it can facilitate. We should harness those benefits for our most complex problems and not let this powerful statute continue to shrivel on the vine. The next 50 years offer an opportunity to reclaim NEPA’s original promise.

All blog posts are the opinion of its author(s) and do not necessarily reflect the views of ELI the organization or its members.