Is NEPA Dead?

                                              Comments due by February 16, 2019


 Since 1970, the public has had a voice in major federal infrastructure projects. But the landmark environmental law that gives us that right is having its teeth pulled. The National Environmental Policy Act is the nation's oldest environmental law, widely known as the Magna Carta of green legislation. A blueprint for minimizing environmental impacts while ensuring compliance with federal laws like the Endangered Species Act, NEPA compels federal agencies to consider potential consequences of any "major" project they take on.
When President Richard Nixon signed NEPA into law in 1970, he said it would help "America pays its debt to the past by reclaiming the purity of its air, its waters, and our living environment." NEPA was forged in response to decades of preventable environmental disasters: highway growth that bulldozed entire neighborhoods in the 1950s, an oil spill in California that came from offshore drilling, and the infamous Cuyahoga River fire, among others. There are few hard statistics on the efficiency of NEPA, but the law has demonstrably improved countless infrastructure projects, saving trees, wetlands, and— yes—money throughout the United States for the last 50 years. Now, of course, the Trump administration is trying to gut the law. At six pages and one line, the law isn't long or complex; it serves more as an ingredient list than as a full recipe. It mostly just orders federal agencies to find, minimize, and report impacts of federal projects. It also establishes the Council on Environmental Quality, a group that's central in President Donald Trump's plan to defang the law. Under the purview of the White House, the CEQ is NEPA's executive operative, regulating how NEPA is implemented by and between federal agencies. Since the CEQ issued its regulation on NEPA compliance in 1978, the council has only made two amendments to its text—once to change its mailing address, and once to eliminate "worst-case" analysis from the review process (the latter change happened under President Ronald Reagan, though the withdrawal of language was apolitical, more due to confusing wording in the process that made it difficult to implement than to anything else). Over the past year, the CEQ, under the guidance of the Trump administration, has been working not just to amend NEPA, but to rewrite it altogether. As long as Trump has been president, the top spot at the CEQ has been vacant—until three weeks ago, when the Senate confirmed Mary Neumayr as chairwoman of the council. (Absent of an official chair, Neumayr had already been in the top spot at the CEQ since March of 2017.) Though her views on climate are not as extreme as those of the previous nominee—Neumayr at least says she believes in climate change—she is squarely conservative in her views on government regulation. As ThinkProgress points out, Neumayr once wrote a paper for the conservative Federalist Society criticizing government regulations, including environmental laws, for their alleged "criminalization" of corporate activity. Having served in various energy and environmental federal counsel positions spanning the George W. Bush and Barack Obama presidencies, she looks a lot like an establishment conservative. Most important, she has pledged to carry out the agenda of the Trump administration. As chief of staff at the CEQ, Neumayr had already begun to do so. In 2017, she oversaw the withdrawal of Obama-era guidance requiring agencies to include greenhouse gases and climate change in their NEPA reviews. In June of last year, the CEQ put out a notice that it would be amending NEPA, and opened the rule for public comment. The notice poses 20 questions to the public, asking generally about whether parts of NEPA could be "updated" or "clarified," and whether the process could be made more "timely" or "efficient." While the CEQ hasn't put out any legislation yet, the tenor and thrust of these questions suggest that Trump's goal is to slash NEPA by restricting its usage and narrowing its purview. "There are two strands of attack on NEPA," says Pat Gallagher, legal director at the Sierra Club.* "What they're trying to do via regulation [is] to weaken the actual triggers for when they have to act on NEPA." Part of that strategy requires massaging the definition of what constitutes a "major federal project," which refers to projects big enough to warrant an environmental review in the first place, and expanding the list of "categorical exclusions," a list of actions that an agency may take that have been predetermined not to warrant a NEPA review.
 As an example, Gallagher says that an agency may stipulate that up to 10,000 acres of post-fire logging would be categorically excluded from undergoing an environmental review. "And that's a big problem. They're basically going to try to take big whole classes of actions and just remove them from NEPA," he says. That's not just a regulatory problem; it's a problem for democracy as well. A crucial part of NEPA is its requirement that every project undergoing the environmental review process be open to public comment. Through this mechanism, communities can drastically change the form of a project through the public comment process: They can suggest alternatives that may not only be beneficial to their local environment, but also make a project cheaper and more efficient. Public comment on a highway project in Colorado, for instance, helped minimize tree removal and dust due to construction, while adding bike lanes. The community-sourced alternative to the highway project ended up costing less than the original plan. Exempting entire categories of projects from NEPA, then, would "gut the statute. It removes the public from any review," Gallagher laments. The other strand of attack on NEPA is to place arbitrary restrictions on how long the environmental review process can take. Right now, a typical review will take three to five years; Trump's goal is to cut it to two years. He also wants to shorten the statute of limitations for claims drastically, from six years to 150 days. Ironically, this approach could make the review process even longer. "My prediction about that strand is that it will result in more litigation and more successes by the [non-governmental organization] community," Gallagher says, "because haste makes waste." As for trying to shorten the statute of limitations, Gallagher adds, "we're not that stupid. We know about statutes of limitations, so if we see a bad NEPA document, and we feel like it's grounds for litigation, we're going to pursue it." Is there a way to shorten the NEPA's often lengthy review process without sacrificing basic environmental protections? California's version of NEPA, the California Environmental Quality Act, despite being more stringent, has a one-year time limit on its review process. A NEPA review typically takes longer than a CEQA review, but it's possible to put meaningful time limits on NEPA, and stick to them ( for the most part). Still, the only way to do so would be to thoroughly examine the entire process, case by case, combing for patterns in studies and statistics. Even then, some massive projects like the Keystone XL pipeline and drilling in the Arctic National Wildlife Refuge may still end up taking many years to review. The expansive scope of such projects lays out miles of hurdles, including "funding issues, engineering requirements, changes in agency priorities, delays in obtaining non-federal approvals, or community opposition to the project," according to a Government Accountability Office report. It takes competent, good-faith agency leadership to address issues as deep-rooted as these. Perhaps Neumayr, the longtime bureaucrat, could be that leader. But if she takes Trump's NEPA-gutting guidelines at face value and no further, it's not likely. In 2009, then-CEQ chair Nancy Sutley was hopeful that NEPA could be streamlined without sapping its ability to protect communities and their environments. She asked agency leaders to take a critical look at how NEPA fit into their operations, per E&E News, with the stipulation that "a scalpel is probably better than a bulldozer to deal with NEPA." Surely, after 50 years of the law, we have the tools to do this better.