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The Shot Clock, the DH, and NEPA

Friday, December 6, 2019

Fred Wagner

Partner, Venable LLP

On the surface, the 24-Second Shot Clock, the Designated Hitter, and the Council on Environmental Quality (CEQ) NEPA regulations do not have much in common. But bear with me.

In 1954, the National Basketball Association (NBA) faced a problem—teams leading late in games would hold on to the ball, literally for minutes on end, in an effort to preserve their advantage. Ball-handling wizards like Bob Cousy could dribble out the clock, forcing the defense to chase him around in futility or commit a foul. The games got boring. NBA executives decided to install a shot clock to make their product fast-paced and exciting. The rest, as they say, is history.

Major League Baseball faced a similar quandary 20 years later. Pitching had become dominant; scoring was at an historic low. In order to liven up the game and avoid the nearly automatic outs when pitchers came to the plate, the American League introduced the Designated Hitter (DH) in 1973 (for trivia buffs, Ron Bloomberg of the Yankees had the first DH at-bat). Baseball purists debate the merits of the DH to this day, challenging whether the potential offensive benefit of having a more potent bat in the line-up every day is worth the sacrifice of traditional baseball strategy.

Here we are now, celebrating the 50th anniversary of NEPA, one of the country’s bedrock environmental laws and arguably its most democratic in purpose and in implementation. The regulations governing NEPA have been in place for over 35 years. Many argue that the CEQ regulations have stood the test of time, helping successfully guide the preparation of literally hundreds of thousands of environmental impact statements (EISs) and environmental assessments for proposed federal actions impacting almost every aspect of American life. Yet, there is substantial support to breathe new life into the CEQ regulations and into NEPA itself. If the gravamen of NEPA is to take a “hard look” at the impacts of governmental action, why not also take the same hard look at how NEPA is functioning now and whether it could stand improvement?

Sure enough, last year, the CEQ issued an Advanced Notice of Proposed Rulemaking seeking guidance on whether or how to update the federal NEPA regulations. According to the most recent administration Regulatory Agenda, draft rules could be published by the end of 2019.

The prospect of changing the regulations has sparked both support for modernizing NEPA’s procedures, which in many instances have led to encyclopedic EISs, and an outcry of opposition, fearing diminution of the public’s opportunity to have input into key project development decisions across the country.

Advocates for change cite to the overly drawn-out administrative processes to reach a final agency action under NEPA, either a Finding of No Significant Impact (the best environmental acronym in history, a FONSI) or a Record of Decision. According to the most recent government statistics, complex infrastructure projects take on average four years or more, just to conclude the NEPA process. The most controversial projects, for example, the Cape Wind offshore wind farm, take much longer than that, leaving unfulfilled the potential for needed technological and environmental advancement.

Those favoring preservation of the current regulations say that NEPA is not to blame for delays in important projects. After all, the vast majority (well over 90 percent) of all federal actions are reviewed under the regulations’ “categorical exclusion” provisions, allowing for project approval in a matter of weeks. If the complicated stuff takes longer, well, they’re complicated! The public deserves a seat at the table when those decisions are made, and NEPA is often-times the best way to solicit and consider community concerns. Any change to those rules could sacrifice one of NEPA’s main goals.

The defenders of NEPA’s current regulations are correctly justified in defending how they have been employed to preserve the statute’s benefits. Countless projects have been improved, through fundamental changes to the underlying action, and through incorporating effective measures to avoid or mitigate the most troubling potential environmental impacts. Yet, the fear of change improperly minimizes the legitimate challenges faced by crucial sectors of the American economy. The United States clearly has fallen behind our international competitors in terms of infrastructure development, including those intended to combat climate change, such as siting renewable energy facilities. NEPA documents have grown in volume, but the transparency to the affected public has not necessarily been enhanced. While there is no magic to completing an EIS in two years, the current administration’s articulated policy objective, it should not be impossible to meet that deadline and produce better environmental outcomes.

No doubt—change is hard, in sports, and in environmental law. But if we are to enjoy the benefits of NEPA’s remarkable vision, we must allow it and its rules to evolve.

Reenter the Shot Clock and the DH. Was the advent of those sporting innovations an unnecessary concession to the public’s desire for speed and entertainment? Have the games altered forever by those new rules improved? One thing is for certain—basketball and baseball fans could hardly imagine the game without those rules, even if the introduction of those innovations came with a degree of consternation and objection. Fifty years from now, we’ll hopefully look back at NEPA’s 100th anniversary and say that the CEQ’s regulations, even as amended, met the challenge of a changing world without sacrificing the benefits of informed decisionmakers and citizens.

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