A big step forward for the National Environmental Policy Act

The White House Environmental Quality Council recently updated the regulations implementing the National Environmental Policy Act (NEPA). The new rules replace the Trump administration’s misguided attempts at tightening and will result in better and more defensible decisions.

NEPA has two goals. First, federal agencies must critically assess the impact before acting. NEPA does not force authorities to eliminate all impacts, only to make informed decisions about trade-offs. Think of NEPA as the look before you act. It doesn’t ban jumping — it requires authorities to watch the landing before taking the plunge.

Second, NEPA directs federal agencies to notify the public of proposed actions that may affect the environment. The public can comment on likely positive and negative impacts and suggest better ways to achieve the desired goal. Agencies must consider this input before acting. In short, NEPA ensures you have a say in government decisions that affect the air you breathe, the water you drink and the countries you roam.

NEPA avoids the dreaded “one size fits all” approach for governments. Decisions such as permitting construction of an interstate pipeline require careful consideration and are analyzed in an Environmental Impact Statement (EIS). Most decisions don’t reach this level and are handled faster. Less than 1 percent of federal actions trigger an EIS, and about 95 percent involve the fastest of NEPA’s three levels of verification.

Further reforms deserve attention if they advance the two goals of NEPA. In reviewing over 40,000 Forest Service NEPA decisions, we found that while most were completed within a predictable and reasonable timeframe, some were deadlocked, sometimes for years. This could mean that NEPA is working as intended, detecting issues and prompting a re-examination before an unwise decision is made. It can also reflect bureaucratic inefficiencies, so we kept digging.

We examined the level of analysis, geographic region, project year, and interplay of 43 activities from deforestation to campground improvement and identified factors associated with delays. We found agencies hampered by inadequate funding and staffing. The Forest Service, for example, saw its planning budget drop 64 percent between 2001 and 2015, contributing to delays at NEPA. We also found that the Bureau of Land Management spends more time waiting for information from operators than it does reviewing oil drilling permit applications. The problem is not NEPA’s statutory mandate or its implementing regulations, and reforms must address the problem, rather its symptoms. If Congress wants expedited approval, Congress should fully staff and fund federal agencies.

While critics claim that environmentalists are misusing NEPA to delay valuable projects, the facts say otherwise. The federal government is sued for NEPA compliance only 0.22 percent of the time. NEPA plaintiffs more than other plaintiffs. Selective litigation and above-average win rates show that environmentalists choose their fights. The new rule’s focus on quality decisions and the lack of a stripped-down review of alternatives will only further reduce the risk of litigation.

For years, courts have ruled that NEPA requires agencies to consider direct, indirect, and cumulative impacts. Authorities can’t allow oil and natural gas to be extracted and then pretend that burning those resources doesn’t affect our air or climate. But that’s exactly what the previous administration attempted, brushing away most of the impact and launching five lawsuits alleging the Trump administration’s regulations failed to meet the statute’s requirements. The new NEPA regulations fix this error.

The state should always strive to improve efficiency. Rules enacted this week coordinate compliance with multiple laws spanning multiple jurisdictions, an approach supported by data. Critical habitat designations for federally protected species that are subject to NEPA review are completed an average of three months faster than NEPA-exempted decisions.

The benefits of NEPA are tangible, leading to choices that are less harmful to human health and the environment. EIS for a major oil and gas development project in Colorado, Montana, Utah and Wyoming saw reduced impacts on all impact indicators. Air pollution emissions for nitrogen oxides, which chemically react and create smog, fell by 24 percent. Particulate matter emissions fell by 24 percent, while emissions of larger particles fell by 23 percent. Wetland impacts have also been reduced by over 30 percent. The same review found that both job creation and state and local tax revenue growth increased in the face of increased environmental protection, although the rate of growth declined as environmental protection increased.

NEPA has been dubbed the Magna Carta of environmental law, and its new regulations renew that legacy. Don’t be fooled by other claims.

John Ruple is a law professor at the University of Utah’s SJ Quinney College of Law and a Wallace Stegner Center fellow at the Wallace Stegner Center for Land Resources and the Environment.

Jamie Pleune is an Associate Professor of Law at SJ Quinney College of Law and a Wallace Stegner Center Fellow.