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NEPA Compliance and Litigation: Maybe Not as Burdensome as Some Think

Wednesday, May 5, 2021
Hallie Ruttum

Hallie Ruttum

J.D. Candidate, Vanderbilt University Law School

Linda Breggin

Linda Breggin

Senior Attorney; Director of the Center for State, Tribal, and Local Environmental Programs

In “Measuring the NEPA Litigation Burden: A Review of 1,499 Federal Court Cases,” Prof. John C. Ruple and Kayla M. Race quantitatively demonstrate that the National Environmental Policy Act (NEPA) compliance and litigation burdens may be overstated—findings they argue should inform any revisions to NEPA. The article was originally published in Lewis & Clark Law School’s Environmental Law in 2020. The piece was also selected as a top 20 article for the Environmental Law and Policy Annual Review in 2020, an ELI-Vanderbilt Law School project that identifies innovative environmental law and policy proposals each year.

The article responds to two common questions: first, whether NEPA’s requirement—that federal agencies take a “hard look” at the environmental impacts (and consider alternatives) for all “major Federal actions significantly affecting the quality of the human environment”—is justified in light of potentially significant compliance costs. And, second, whether NEPA litigation is strategically used by environmentalists to delay projects. Upon review of 13 years of White House Council on Environmental Quality NEPA litigation data summarizing 1,499 federal court opinions, Ruple and Race conclude that neither NEPA’s compliance burden nor the Act’s litigation burden is unreasonably burdensome.

According to the authors, although completion of a NEPA environmental impact statement (EIS) is intensive and time-consuming, this burden affects only a very small percentage of federal agencies (less than 1%)—and the number of EISs required has been declining in recent years. Further, time spent on EISs seems to pay off: building on data from Profs. David Adelman and Robert Glicksman, Ruple and Race find that, generally, the longer a federal agency spends preparing an EIS, the less likely the EIS will be challenged in court.

CourthouseRuple and Race demonstrate that the NEPA litigation burden is similarly reasonable: only one out of 450 NEPA decisions is litigated annually, and NEPA lawsuits are filed at a decreasing rate. More broadly, NEPA litigation accounts for only a small percentage of both total federal civil litigation (0.043%) and federal environmental or lands civil litigation (12.2%) in which the government is a defendant. In general, NEPA litigation outcomes are fair: federal agencies “win” this litigation at rates similar to other environmental matters brought against them, and these rates have continuously improved, especially within the last five years.

Overall, Ruple and Race’s analysis presents a much-needed empirical perspective on the ongoing debate over NEPA compliance and litigation burdens. The authors contend that any revisions to NEPA’s implementing regulations—such as those forwarded by the Donald Trump Administration—should be grounded in a statistical review similar to their scholarship. Ruple and Race highlight that: “NEPA’s purpose is to help protect public health and the environment through informed decisionmaking and accountability. Those aims should also be the guiding principles of any reform process.”

To facilitate such review, Ruple and Race recommend increasing and standardizing NEPA document data collection and publication across all federal agencies. In particular, the authors assert: “NEPA reform should begin by adequately funding agencies to do what we demand of them—we can’t deny them the staff or resources they need and then blame them for delays or sloppy analysis. We also need to collect better data on the NEPA process so that we can tailor reform and get the biggest bang for our buck.”

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