CHALLENGING NEPA: THE FUTURE OF ENVIRONMENTAL IPMACT STUDIES

BY Jared L. Matte

INTRODUCTION

In 1970, President Nixon signed the National Environmental Policy Act (NEPA) into law.[1] “Congress enacted NEPA to establish a national policy for the environment, provide for the establishment of the Council on Environmental Quality (CEQ),” and achieve other environmental purposes. [2] NEPA has remained unchanged since its enactment, which is the reason the Trump Administration wants to update and “streamline ‘an outrageously slow and burdensome federal approval process’ that can delay major infrastructure projects for years.”[3]

NEPA REQUIREMENTS

Known as “the Magna Carta” of Federal environmental laws, NEPA requires Federal agencies to assess the environmental effects of proposed major Federal actions prior to making decisions.”[4] Congress’s declared purpose of enacting NEPA was to ensure that it was the policy of the federal government to “use all practicable means and measures” so that mankind and nature can coexist in “productive harmony for the present and future generations of Americans.”[5] Federal agencies must foster ideas and ways to create and maintain sustainable environmental conditions while fulfilling the social and economic progress of the nation.[6]

AGENCY IMPACTS ON THE ENVIRONMENT

NEPA established procedural requirements for Federal agencies by requiring Federal agencies to
prepare a detailed statement on:

(1) the environmental impact of the proposed action;

(2) any adverse effects that cannot be avoided;

(3) alternatives to the proposed action;

(4) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity; and

(5) any irreversible and irretrievable commitments of resources that would be involved in the proposed action.[7]

Under the doctrine of Separation of Powers, Congress enacts the laws and the President enforces
the laws of the United States. The CEQ is a department within the Executive Branch that is responsible for ensuring that NEPA requirements are followed by all Federal agencies. Before major projects are approved by Federal agencies, an Environmental Impact Study (EIS) must be done prior to any approvals so that Congress and the public may be made aware of the impact that the proposed actions will have on the environment.

In order to ensure that Federal agencies meet the above obligations, the Council on Environmental
Quality (CEQ) was established within the Executive Office of the President.[8] The CEQ reviews and approves NEPA procedures, alternative arrangements for compliance with NEPA for emergencies, and resolutions in disputes between Federal agencies, other governmental entities, and the public.[9] The CEQ also “oversees NEPA implementation, principally through issuing guidance and interpreting regulations that implement NEPA’s procedural requirements,”[10] but one of CEQ’s major responsibilities is to “develop and recommend national
policies to the President that promote the improvement of environmental quality and meet the Nation’s goals.”[11] In short, Congress enacted NEPA to ensure that the environmental impact of projects will be taken into account before Federal agencies approve permits or undertake major actions.

THE END OF ENVIRONMENTAL IMPACT STUDIES

            Under the current NEPA requirements, public and interest groups have the ability to make public comments on proposed actions, which are taken into account before the agency takes action.[12] The proposed changes to NEPA requirements would require only that federal agencies “consider effects that are “reasonably foreseeable” and have a “close causal relationship” to the project.”[13]The proposed changes would also “exempt “non-federal” projects with little government funding” from review under NEPA.[14]

            In support of the proposed limitations on NEPA, “industry groups say streamlining NEPA regulations would lead to more and better-paying jobs, as long-delayed projects could be built.”[15] Mary Neumayr, chair of the White House Council on Environmental Quality, says, “[T]he average times for agencies to complete an environmental impact statement is 4 ½ years, and it is even longer for highway projects, which average seven years.”[16] 

            Environmental groups plan to challenge the proposed limits on NEPA requirements by taking legal action.[17] They warn that the changes would “sideline the climate impacts of highway, pipelines and other projects.”[18]

CONCLUSION

            An Environmental Impact Study’s costs are substantial and time consuming on both the taxpayer and private industry. The proposed changes would streamline the approval process and reduce financial costs, allowing projects to move forward in a timely fashion. However, NEPA is the Nation’s “bedrock environmental law,” meant to protect the environment for future generations of Americans. While EIS’ are burdensome on industry and government, it is important to understand the impacts that major projects will have on the environment so that reasoned decisions may be made and alternatives be evaluated.