Top Ten Ideas for Better NEPA Outcomes

I’ve just finished listening to Ezra Klein’s podcast “How Liberals – Yes, Liberals – Are Hobbling Government” with guest, Nick Bagley of Michigan’s Law School and previously Governor Gretchen Whitmer’s chief legal counsel as well as the law review article and essay its based on.?The fundamental premise of the work is that it is deeply harmful to effective government to write policies on the premise that without prescriptive, strict recipes for how government agencies should behave in every conceivable situation, they will behave badly.??Here is a sample:

“The central dogma of administrative law is that strict procedural rules are essential to agency legitimacy and necessary for public accountability. That dogma is false… The dogma is also pernicious. Instead of the instruments of public aspirations, agencies become the bastard stepchildren of a damaged constitutional system, rife with corruption and inside dealing.”

So much of this paper rings true to me, and it is directly relevant to the bipartisan discussions around environmental permitting that are having a hopeful moment in both the Senate and House but also seeing progress in states from California to Maryland.?

The National Environmental Policy Act of 1969 (NEPA) is the source for the requirement that federal agencies carry out environmental assessments (EAs) or environmental impact statements (EISs) for every environmentally-significant action they take, fund, authorize or permit.?The law is a big part of most of these permitting discussions and I’ve covered some of the major issues and failures of the procedures that have evolved under the law. My main conclusion: in practice, even with these analyses, the public is left in the dark because NEPA documents often run 1,000s of pages, full of bland, verbose consultant-speak that makes both consequential and trivial issues seem equivalent, and that leads agencies away from practical opportunities to leave the environment better, while speeding up permitting.

Here is one other thing to keep in mind about NEPA that seems impossible to believe:?Agencies have basically ignored what should have been the most important, non-procedural part of the law (section 101) that says “use all practicable means” to improve programs such that the Nation may be sure that Americans have healthy surroundings and use the environment without degradation.?And they have focused on the procedural part (section 102) that is purely information-sharing, requiring agencies to document the damage that potential projects will cause, but without a requirement to avoid the damage.

If there is a worse example of missing the forest for the trees in the intent of a law, I don't know of it.

So here is my top ten list of reforms I wish Congress would make to the National Environmental Policy Act.?The emphasis on most of these is toward reducing or eliminating procedures, but there are also a few that are meant to give agencies regulatory tools that allow them to better balance the choices they have to make in complex inter-agency environmental reviews.?Our current permitting system is not serving the renewables-rich and ecologically-restored world we need to be living in right now. These changes might help:

1. Categorical exclusions for nature-based projects:?In 2021, California’s legislature modified the state NEPA analog, CEQA, to allow the Secretary of Natural Resources to waive CEQA review for environmental restoration projects and had earlier created an exemption process for small restoration projects. In effect, California has started treating nature-based projects as ‘innocent until proven guilty’ as opposed to the other way around, as it does for all other major development projects.?In a report to the California legislature last week, the Secretary documented using that waiver 12 times for larger projects and an earlier report in 2022 documents more than 200 exceptions issued in the prior year for small projects. Categorical exclusions are a flawed procedure that captures and clears projects that common sense should have altered ruled don’t need review and other classes of projects where there is a standardized procedure to avoid and minimize harmful impacts for similar projects where the mitigation strategy is repeatable.?Nonetheless, it’s one of the only tools available that allows agencies to stop wasting time on trivial projects.?Thus, NEPA should include an exemption for environmentally beneficial projects and Congress should ensure that stream and river restoration, coastal restoration and a host of other projects that are obviously designed to achieve net environmental benefits do not require NEPA review.
2. ?Mitigated Environmental Assessments: Most people assume that NEPA requires agencies to avoid or offset environmental impacts but it doesn’t. In fact, agencies can pick the most damaging alternative as long as they document all the environmental effects in the process of doing so. Rather than the statute, it’s the public service-focus of agency staff, common sense, and the fear of endless litigation that keep them from doing so most of the time.?However, Congress could reward projects that find a way to fully avoid and offset significant impacts by simplifying their paperwork and review timelines.?In fact in 2011, the Obama administration finalized guidance that did just this.?I believe it was the most important policy achievement that administration accomplished for NEPA, but has been rarely used since.?It should be codified.?The guidance explained how project proponents could build avoidance and beneficial offsets into their initial project designs such that they would be able to avoid a net significant harmful impact.??Projects that meet this test only need to write a simpler, faster Environmental Assessment, instead of an Environmental Impact Statement.?This is effectively a way to include a ‘net conservation gain’ or ‘net zero’ goal in NEPA and incentivize its achievement because it’s the basis for avoiding an EIS and carrying out only a simple EA review.?This would be an incredible victory for environmental outcomes and permit timelines.
3. Beneficial effects should be written into the statute and precluded from triggering NEPA: Entirely environmental beneficial projects still often have to go through NEPA review (or get a categorical exclusion) because the language in the law focuses on “actions significantly affecting the quality” of the environment requiring a detailed statement, not just ‘negative effects.’ Thus, a project having only significant environmental benefits still, in theory triggers NEPA review.?This is moronic.?NEPA uses the words “effect(s)” and “affecting” four times and “impacts” seven times, but no agency regulations have interpreted the different meaning of these three words that Congress presumably used intentionally. Legislation could clarify how these terms should be treated and find a way to eliminate paperwork currently required for entirely beneficial projects.
4. ?Fix Environmental Assessments: EIS documents get the most attention, but Environmental Assessments are used an order of magnitude more frequently and are still enormously time consuming.?For example, in 2009, 6,300 assessments were completed and only 715 impact statements and recent estimates assume at least 10,000 assessments are completed each year.?There is less information available on the average length of EAs, but I reviewed the 14 EAs that the Department of Energy tracks completing in 2022 which averaged 116 pages.??There are generally at least 10X more EAs than EISs, therefore the paperwork to complete them is more voluminous than for EISs. Assuming 116 pages and 10,000 EAs, that is 1.16 million pages of analysis for projects without significant negative effects.?Despite the limitation of requirements in NEPA to document alternatives only for projects that significantly affect the environment, agencies usually still require EA documents to include lengthy ‘alternatives analysis.’?If a project does not have significant effects, why consider alternatives to it??This is a low value, time-consuming activity that the law could clarify is not necessary for projects without significant effects.
5. ?Readability standards: Administrations and Congress have tried page limits.?A better approach that is consistent with original Congressional intent is to impose a ‘comprehension standard’ that explains that the purpose of NEPA is to provide analysis and background to the public and therefore any impact analysis over a certain length (including its appendices) must justify how that length of analysis does not preclude the average American from understanding the statement.?Page limits have always been arbitrary.?A comprehension standard could be based on the science of learning and cognition, and thus more defensible.?
6. ?Visual and digital NEPA: Create a preference in law for entirely web-based, visual, and machine-readable Environmental Impact Statements that would avoid the paper production caused by the existing NEPA procedures. Require that data collected for the development or implementation or monitoring of projects using EISs must be stored and shared through digitals tools that make the environmental data available to all subsequent projects.?Such language would already be consistent with other federal laws and executive actions but is missing from NEPA work now.?Effort is expected to collect data each time, and rarely shared across projects.?
7. ?Better define “significance:” One reason NEPA reviews have gotten more complicated is because there is no effective limit on the triviality or hypothetical nature of the potential effects that are analyzed.?It’s more business income for NEPA-drafting consultants to look at every conceivable issue and court rulings haven’t helped that allow minor gaps in impact analysis to trip up major projects of public importance.?The scoping processes early in EA and EIS development should be used to identify significant impacts and the law should define criteria for significance that would limit agency’s extensive review to those issues and limit research on and discussion of insignificant impacts.
8. ?Planetary Benefits: In a way that would echo the social cost of carbon, agencies should be required to document and credit renewable energy projects, transmission, rare earth minerals mining and other activities with the benefits to the planet they are providing and that would be lost if a permit isn’t issued or if one is delayed.?We’ve written about this informally before, suggesting for example, that each gigawatt of renewals should be credited in NEPA and other analyses with preventing the extinction of approximately 42 species, because that is a ballpark estimate of the benefit that a renewals gigawatt provides to biodiversity, even if the individual species cannot be identified.?NEPA should require agencies to include these ‘big picture’ perspectives – it was part of the original intent of NEPA in the first place: to make the public aware of tradeoffs between building and not building a project. The presence of significant positive effects shouldn’t be a trigger on its own to require an EIS (see below), but if another significant negative impact does so, positive effects like these should be documented and could potentially offset other harms.?
9. ?Require net carbon benefits: Section 101 of NEPA requires federal programs and plans to “enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.”?This language has never been the focus of regulations, but it would be straightforward to add a subsection explaining that carbon is a depletable, recyclable resource that EISs must lead to projects that achieve, at minimum, net zero impact on carbon.?
10. Bring in the National Academies: Even though we needed it 20 years ago, NEPA reform could still be a long game.?A great short-term opportunity, if that is true, is to pass appropriations language that funds the National Academies of Science to carry out a review of better NEPA permitting.?Specifically, the National Academies should look at how to make NEPA reviews more accessible and useful to the public, review the most effective EISs in shaping project design, and review any agency or state initiatives to accelerate reviews that also produced defensible analyses.?The National Academies could also provide background on EAs and how to make them worth the effort, as well as review practices in digital EISs and sharable environmental analysis data that is happening in the Netherlands and other countries.

(Caveat: And yes, I know that a principal concern with all of these is, “what if in some contorted hypothetical situation X happens?” I’ll say right up front that its true that some of these changes could lead to bad outcomes some of the time.?But the reality is that these 'what if' hypotheticals are mostly used as a cynical but effective way to end debate.?They are scary stories to keep the rest of us from talking about new approaches that could lead to more effective ways to govern the majority of actions affecting the environment.?These and many others’ ideas highlight ways that simpler government can focus on net outcomes and get us there faster. )