NEPA after 50: Paperwork to Protection

by Gigi Cooper, AICP

Abstract: The National Environmental Policy Act’s (NEPA) narrow applicability and primarily procedural character limit its ability to protect critical and sensitive resources. It instead relies on and serves as an umbrella for resource-specific federal and state regulations. Its success has been as an impetus and a model for state environmental protection laws, particularly California’s CEQA, Washington’s SEPA, and Oregon’s Statewide Planning Goals which have broader applicability and provide more protection. As state laws are increasingly effective as a path forward, then is NEPA useful or necessary.

Statement: This material has neither been published before nor simultaneously submitted elsewhere.

The National Environmental Policy Act (NEPA) lacks enforcement and standards for outcomes by design. In announcing his impetus for NEPA, in reaction to an oil spill, President Nixon emphasized aesthetics, not protection (Nixon 1969). During the 1970s, the U.S. Supreme Court determined that NEPA required federal agencies to follow the procedures, consider environmental consequences, and disclose those consequences, but that “it is well settled that NEPA itself does not impose substantive duties mandating particular results, but simply prescribes the necessary process for preventing uninformed—rather than unwise—agency action (Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989)).”

NEPA functions mainly as a vehicle for public disclosure and relies on stakeholders filing lawsuits to ensure federal agencies follow their NEPA rules. During its 50 years in effect, development proponents have complained that it unnecessarily slows projects, and conservation advocates complain that it provides too little protection. The U.S. Chamber of Commerce and its Unlock America Investment Coalition supported the Trump Administration’s sweeping 2020 implementation rule changes because they claim that it takes “4.5 years for a project to reach a NEPA decision,” with transportation projects taking seven years (U.S. Chamber of Commerce 2020). Data show that for an Environmental Impact Statement (EIS), the mean preparation time from Notice of Intent (NOI) to the Notice of Availability (NOA) for the final EIS was 4.9 years, and the most frequent time period was two to three years (Nicholson 2019). 

The time from NOI to NOA does not reflect project stops and starts that “…may have been associated with funding issues, changes in agency priorities, community opposition to the project” and delays by other regulatory permitting agencies (Luther 2007). In addition, EISs represent a small fraction of NEPA work, and Categorical Exclusions (CEs) and Environmental Assessments (EAs) do not take nearly as long.

NEPA’s ineffectiveness is two-pronged. First, NEPA is a process, not a protective regulation. Without enforcement rules, project opponents sue on the basis of procedural errors, sometimes delaying a project so long that it is no longer viable. Second, since NEPA only applies to federal agency actions, federally funded projects, and projects that require federal permits, its reach is limited. Federal annual nondefense investment in infrastructure is only $12 billion, while state and local investment total $302 billion (BEA 2020). Certainly, some state and local projects use federal money or require a federal permit, and are therefore subject to NEPA, but with 25 times more state and local investment, and with even substantially more private improvements, NEPA applies to only a fraction of total annual development.

One important way NEPA provided real protection in the past is by serving as a model for the passage of state environmental policy acts. While NEPA did borrow from a few early state laws, for example, the early revision of the NEPA CFRs incorporated the scoping process from the Massachusetts Environmental Policy Act (Yost 2019), it has spurred many state requirements for review (CEQ no date). Since the passage of NEPA, 14 states and Washington, D.C., and Puerto Rico have adopted environmental policy acts. Two additional states have executive orders with the same effect. A handful of these even require review for local actions, and California and New York require compliance for private projects as well (in New York only for projects that require a state permit or approval) (Ballotpedia 2021).

NEPA’s second protective function is that it uniquely requires the evaluation of the interaction of impacts to resources. The natural resources assessed under NEPA are already regulated by federal laws, including the Clean Air Act (1970), Clean Water Act (1972), Coastal Zone Management Act (1972), Endangered Species Act (1973), the Farmland Protection Policy Act (part of the 1981 Agriculture and Food Act), National Flood Insurance Protection Act (1973). The Wilderness Act (1964), Section 106 of the National Historic Preservation Act (1966), and the Wild and Scenic Rivers Act (1968) were passed just prior to NEPA. Executive Orders cover floodplains and environmental justice. Each of these permits and reviews requires evaluation and mitigation, and some, like the Endangered Species Act, require a cumulative analysis, but they each cover only one or one set of resources. NEPA examines all relevant natural and human environmental factors relevant to the particular project or program, as well as the interdependence among them. This is critical, as, of course, no resource exists, and no impact occurs, in isolation. This is NEPA’s strength, not only because of the holistic and synchronistic evaluation of impacts, but also because it includes consideration of other federal agency, state, local, and private projects in indirect effects analysis and in the cumulative impacts section. The Council on Environmental Quality’s (CEQ) cumulative effects guidance directs planners to “address additive, countervailing, and synergistic effects; look beyond the life of the action; and address the sustainability of resources, ecosystems, and human communities (CEQ 1997).”

CEQ issued a final rule (Final Rule) on July 16, 2020 to update its regulations for Federal agencies to implement NEPA, which became effective on September 14, 2020. One of the most consequential changes in the Final Rule is the elimination of the requirement for assessment specifically of indirect and cumulative and indirect impacts—what many view as NEPA’s most important tool. Instead, “[t]he combined discussion should focus on those effects that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action.” It also redefines “effect” to limit evaluation to only that which the agency has authority (Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act 2019). Some practitioners have argued that cumulative impacts are unnecessary, as existing conditions by definition take into account past, present, and planned actions of any agency or person (Schmidt 2010). The Final Rule acknowledges this by adding a clause “to emphasize that the affected environment includes reasonably foreseeable environmental trends and planned actions in the affected areas.” Section 102 (ii) of NEPA requires federal agencies to evaluate “any adverse environmental effects which cannot be avoided should the proposal be implemented (NEPA 1969).” In addition, regulations such as the Endangered Species Act, as mentioned earlier, require a cumulative impacts analysis. 

The Final Rule, as-is, may not affect NEPA document preparation as much as planners think. Congress can overturn the Final Rule using the Congressional Review Act. The Biden Administration can direct the CEQ to repeal or revise the Final Rule (Nossaman LLP 2020). And if the Final Rule does stand, it allows federal agencies discretion in promulgating their implementing procedures, leaving decisions about factors from page length limits to level of analysis to “ultimately remain within the discretion of the agency (Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act 2019).”

Regardless of the fate of the Final Rule, NEPA needs to serve as more than a lengthy paperwork exercise. In the author’s opinion, two paths forward provide the solution. First, using climate change as an analysis tool will capture the holistic and interactive effects of projects and programs. This will ensure that NEPA is a tool for protection that its name promises. The Final Rule does not expressly prohibit, but it does limit, evaluation of climate change: “The rule does not preclude consideration of the impacts of a proposed action on any particular aspect of the human environment. The analysis of the impacts on climate change will depend on the specific circumstances of the proposed action…agencies will consider predictable trends in the area in the baseline analysis of the affected environment.” Often, agencies dismiss climate change because they contend that project effects are too incremental, and there is no framework from which to make an assessment. But every NEPA evaluation should at least look at the potential impacts of a changing climate within the expected lifespan of the particular project or program. Greenhouse gas emissions calculators have been developed that can be used to determine, at a minimum, an order of magnitude for the action. Planners should strive to develop more tools to make climate change assessments. Since climate change affects and is affected by all human and natural resources, it should become the overarching mechanism for NEPA to reveal interdependent impacts.

The second path is continuing to expand CE categories and programmatic agreements to speed NEPA clearance for predictable and consistent agency functions. In 2014, CEQ estimated that approximately 95 percent of NEPA analyses are CEs, approximately 4 percent are EAs, and less than 1 percent are EISs (U.S. Government Accountability Office 2014). In the past ten years, the number of EISs has declined 40 percent (Ruple 2020). Federal agencies are steadily increasing the actions in their CE categories, as well as using programmatic agreements to streamline clearance of routine actions. For example, last year the Bureau of Land Management expanded its CEs to include vegetation management for greater sage-grouse and mule deer (85 FR 25472). This is true with the permitting as well with NEPA. The U.S. Army Corps of Engineers is increasing the number of nationwide permit categories from 52 to 56 effective March 15, 2021. Nationwide permits authorize 35,000 reported activities per year, in addition to the 30,000 activities that do not require reporting (U.S. Army Corps of Engineers 2021). Beginning in 2014 under the authority in the Moving Ahead for Progress in the 21st Century Act (transportation funding bill), the Federal Highway Administration developed programmatic agreements with state departments of transportation to allow the state agencies, for many types of projects, to determine whether they qualify as a CE, and to make CE decisions (FHWA No date).

Planners should look for opportunities where actions can be defined as CEs, and, where possible, work towards increasing the number of categorically excluded actions, more programmatic agreements, and more general permits by federal regulatory agencies. A streamlined environmental review enables planners to focus on designing projects and programs that avoid adverse effects and on developing effective mitigation measures, instead of on routine actions with known effects. Spending more resources on potential adverse consequences and developing methods to address climate change will ensure that substantive effects are thoroughly evaluated and will prevent litigation, in other words, less paperwork and more protection.

About the Author
Gigi Cooper, AICP, is a planner in Portland, Oregon. Her writing has appeared in Planning magazine and the ITE Journal. She has served as a Transportation Research Board panel member for a TCRP Research Report, a peer reviewer for APA national conference session proposals, and a grant reviewer for the National Institute for Transportation and Communities. She has a Master’s degree in urban and regional planning from Portland State University.

References

Ballotpedia. No date. State environmental policy acts. https://ballotpedia.org/State_environmental_policy_acts

Council on Environmental Quality (CEQ). No date. States and Local Jurisdictions with NEPA-like Environmental Planning Requirements.  https://ceq.doe.gov/laws-regulations/states.html

Council on Environmental Quality (CEQ). 1997 (January). Considering Cumulative Effects Under the National Environmental Policy Act. https://ceq.doe.gov/publications/cumulative_effects.html#:~:text=Considering Cumulative Effects Under the National Environmental Policy, and resources for additional information and background data.

Federal Highway Administration (FHWA). No date. Environmental Review Toolkit, FAST Act Guidance: A Practitioner’s Guide to FHWA Programmatic Agreements for Categorical Exclusion. https://www.environment.fhwa.dot.gov/legislation/authorizations/fastact/guidance_practitionersGuide_to_PAs_for_CE_1315.aspx

Luther, Linda, Analyst, Environmental Policy Resources, Science, and Industry Division. 2007. The National Environmental Policy Act: Streamlining NEPA. Congressional Research Service Report for Congress. Order Code RL33267. (Updated January 9, 2007).

National Environmental Policy Act (NEPA), 1969, 42 U.S.C. 4321-4347.

National Environmental Policy Act Implementing Procedures for the Bureau of Land Management (516 DM 11), U.S. Department of the Interior, 2020. 85 FR 25472 (May 1, 2020). https://www.federalregister.gov/documents/2020/05/01/2020-09301/national-environmental-policy-act-implementing-procedures-for-the-bureau-of-land-management-516-dm 

Nicholson, Charles P. 2019. 2018 ANNUAL NEPA REPORT of the National Environmental Policy Act (NEPA) Practice. National Association of Environmental Professionals. (November). 

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Nixon, Richard. 1969. (March 21). Remarks Following Inspection of Oil Damage at Santa Barbara Beach. https://www.presidency.ucsb.edu/documents/remarks-following-inspection-oil-damage-santa-barbara-beach

Ruple, John and Heather Tanana. 2020. NEPA at 50: An Empirical Analysis of NEPA in the Courts. Pre-Publication Draft. ROCKY MTN. MIN. L INST. https://ssrn.com/abstract=3716579

Schmidt, Owen. 2010 (April 6). Writing the 'Perfect' NEPA Cumulative Impact Analysis. ACEC on-demand webinar. https://netforum.acec.org/eweb/DynamicPage.aspx?Site=ACEC_STORE&WebCode=ACECproductDetail&prc_prd_key=2ff96f9b-f387-4210-93d4-f6446dcd49f1

Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act; Council on Environmental Quality, 2019, 85 Fed. Reg. 137  (July 16, 2020) (to be codified at 40 CFR Parts 1500 et seq.).

U.S. Army Corps of Engineers. 2021 (January). Nationwide Permit Reissuance. https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll7/id/16919

U.S. Bureau of Economic Analysis (BEA). 2020. National DataFixed Assets Accounts Tables. Table 7.5. Investment in Government Fixed Assets. https://apps.bea.gov/iTable/iTable.cfm?ReqID=10&step=2.

U.S. Chamber of Commerce. August 25, 2020. U.S. Chamber Coalition Moves to Defend NEPA Reforms In Court. https://www.uschamber.com/press-release/us-chamber-coalition-moves-defend-nepa-reforms-court

U.S. Government Accountability Office. 2014 (April). National Environmental Policy Act: Little Information Exists on NEPA Analyses. Report to Congressional Requesters. file:///D:/ARTICLE/GAOReport.pdf

U.S. Reports: Robertson, Chief of the Forest Service, et al. v. Methow Valley Citizens Council et al., 490 U.S. 332 (1989). https://www.loc.gov/item/usrep490332/

Yost, Nicholas C. 2019 (Nov/Dec). NEPA at 50. The Environmental Forum. Washington, D.C.: Environmental Law Institute. https://www.eli.org/sites/default/files/docs/seminars/12_17_19_yost_nepa50tef.pdf