Hearing after hearing has taken place on Capitol Hill of experts testifying how “broken” the National Environmental Protection Act (NEPA) has become. Many efforts have been made to streamline the permitting process, but little has changed.
The administration has issued sweeping changes to ease the burdens, including a memorandum directing all agencies to revise their regulations. Officials now have an opportunity to revamp the system, which has become tedious, complex and expensive. It is hoped this time will be different and meaningful changes will emerge.
What began as measures to improve the implementation of infrastructure projects to protect the surrounding environment has evolved into a complicated and burdensome process that often delays or, in some cases, completely derails the project. NEPA’s mandatory environmental impact statements can reach 11,000 pages and cost $80 million, prolonging the timeline by years. How long does the typical environmental impact statement take? Five years.
NEPA has unfortunately been weaponized and abused by the court system, leading many scholars to consider NEPA the most litigated environmental statute. Within a few years of its inception, 400 lawsuits were filed. More than 40 years later, that number exploded to more than 4,000.
Compelled to ensure their NEPA documents are bulletproof, federal agencies expanded the scope of their assessments, often with “unnecessary analysis,” to cover their bases. The result: much-needed projects are delayed.
Project setbacks and interruptions are costly. They create uncertainty and confusion among investors, significantly add to project expenses, and negatively affect economic growth. Much-needed infrastructure takes an unreasonable amount of time to complete, and, in the worst cases, never occurs.
Failing to execute critical project proposals can keep prices high by stifling the infrastructure needed for efficiency and productivity. For example, impeding energy production limits supply and increases what customers pay to fuel their vehicles, heat their homes, and run their businesses. Low-income communities are the hardest hit since more of their discretionary income must be used for this expense.
However, NEPA has finally been turned on its head.
In light of two recent court decisions, which question the Council on Environmental Quality’s authority to issue binding regulations, agencies have been tasked with modifying their own NEPA regulations within 12 months.
There are changes in NEPA, outlined in a recent report, that could yield more positive results for the permitting process.
The foremost changes need to involve litigation reform. Restrictions should be placed on who can file lawsuits, for what purpose, and at what point in the process. Those without connection to a given project should not be granted standing, nor should a plaintiff attempt legal action late in the game.
Environmental impact statement reviews and assessments should have limits. Analyses approaching thousands of pages and half a decade to complete are unreasonable. Each agency ought to decide page lengths and time frames appropriate for its domain.
These assessments also need to consider the ramifications of the project not materializing. Some proposals are critical for facilitating efficiency, protecting land and habitats, or creating economic growth and stability. Failure to implement them could be highly detrimental, and, in some cases, cause more harm than the perceived damage of the project itself.
Expand the size and scope of categorical exclusions for projects that do not significantly affect the environment. Conducting thorough environmental impact statements and assessment reviews for the sake of conducting one is pointless and wasteful. There are significantly more types of projects that could be put on a faster track for approval.
Each of these ideas would decrease costs and hasten obtaining permits. We need to move more projects through the pipeline much quicker.
NEPA has been exploited and abused for too long, stalling or preventing the advancement of projects needed to support a growing population. Balance can be found between pursuing critical infrastructure projects and protecting the environment.
We should establish relevant changes that simplify and hasten the process. Well-designed permitting reform will stimulate investment, create jobs, grow the economy, keep us competitive in a global market, and strengthen national security.
