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NEPA: Time for a Tune-Up

Friday, December 27, 2019
Dava Kaitala

Dava Kaitala

General Director, Construction Permitting and Sustainability, BNSF

The passage of the National Environmental Policy Act (NEPA) was a seminal moment in the history of U.S. environmental federal policy, advancing protection of the environment in decisionmaking. Unfortunately, the process has become increasingly cumbersome, lengthy, and frustrating to many parties. Moving forward, an improved focus on the quality and alignment of decisions is needed.

The Council on Environmental Quality’s (CEQ’s) first guidelines were not regulations. They were merely guidance on the best way to create an environmental impact statement. Seven years after NEPA was passed, President Carter issued Executive Order 11991, which authorized CEQ to enact its first regulations, which have remained in large part unchanged. CEQ first saw itself as an advisor to the President, not as a policymaking agency. This likely contributed to frustratingly vague regulations that leave so much to the discretion of individual agencies.

It’s doubtful that Congress and CEQ could have foreseen the complexity, litigation, and disputes these vague regulations would cause. A typical railroad bridge provides a good example of the complexity of NEPA. One bridge can require clearances from the U.S. Coast Guard, U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service, National Marine Fisheries Service, Federal Emergency Management Agency, and the Advisory Council on Historic Preservation; it’s complicated!

In our opinion, CEQ’s vision—that every agency could make NEPA fit its needs in its own way—is simply unworkable in practice. Given the often-conflicting goals of different statutes that apply to a project and that are executed by different agencies, more uniformity and consistency in process is vital. Allowing each agency broad discretion to promulgate its own processes and regulations leaves project proponents with the task of figuring out whose procedures apply. Is it the lead agency? The agency with the most knowledge of the subject matter? Often, the answer involves the most stringent, time-consuming, and expensive process for each study, chapter, or consultation of the review.

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The tendency to default to the most time-consuming process is understandable: no agency wants to lose a NEPA case. Litigation risk, more than anything else, drives bloat in the process. The vagueness of CEQ’s regulations means that agencies do not have any concrete limitations on their reviews. As a result, NEPA is the single most litigated environmental statute. And in this case, it is fundamentally unfair to project proponents for the courts to step in to guess at what NEPA and CEQ mean by “significant,” “cumulative,” or “indirect” The only groups who will ever sue over a NEPA document are groups who want to see more process, often for the purpose of stopping projects.

Why do project proponents not sue? It’s a matter of common sense. If a project proponent gets a permit or clearance from the federal agency, how often is that proponent going to sue to say that, while the outcome is what they had hoped for, the process by which they got that permit was flawed? Such a lawsuit, if it could even survive challenge as a “controversy,” would simply start the process over again. The second time, however, the process will be overseen by an agency that is probably not happy to have been dragged to court for abusing their discretion. The hypothetical case would then start over, most likely with an angry or offended agency that might decide that perhaps they were wrong to have issued the permit initially. In that situation, there is little to win and much to lose.

Likewise, if a permit is denied, how often is a project proponent in a position to argue in court that the denial was based on too much process? That would never pass muster. So, the only cases the courts are ever in a position to hear will be over whether the process is sufficient, and never over whether it was excessive. The case law is tilted, and the process as a result is needlessly cumbersome. Both agencies and project proponents experience the same frustration that each EIS is just a little longer, a little more involved, a little more far-reaching than the last. Even straightforward projects are often subject to a checklist full of inapplicable items that render the list borderline nonsense. Do we need to spend government resources evaluating a no-action alternative for a project that had been ordered by Congress—when the no-action alternative would be violating the law? Why couldn’t the scoping process put issues to rest instead of bringing up new ones? Why must we consider alternatives whose economics make a project impossible to bring to fruition? Because project proponents have no way to challenge patently unreasonable document scopes.

We all need a set of regulations by CEQ that lays out for agencies how much is enough. What studies are to be considered and completed if and only if they apply? How long should such a process realistically take? In the event of disagreements between agencies, can we all agree the lead agency’s processes can take precedence and the other decisionmakers need to accept this level of process?

Luckily, significant work has already been done in this area. In particular, the U.S. Department of Transportation has worked to find ways to complete thorough reviews that look at the items that count. CEQ likewise has promulgated guidance on how agencies can work together to have concurrent reviews and a structured conflict resolution process. The Federal Permit Improvement Steering Council is certainly an innovative partnership among several federal agencies who often come into conflict during permitting.

There is much to be optimistic about going forward. Consider again the bold action of Congress to state publicly in the text of the law that we as a nation should “declare national policy which will encourage productive and enjoyable harmony between man and his environment.” Working together, with a spirit of optimism, we can create efficient processes that more effectively protect our environment.

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