What to Do With NEPA?

The National Environmental Policy Act of 1970 was one of the truly groundbreaking laws in American history, creating the entire idea of citizen review of development projects for environmental impact. Development interests have always hated it for creating a system where they would have to be accountable for their crimes against the planet. But now, liberals hate it too because environmentalists have used the process to stop housing development and for other NIMBY purposes. For the right, this is an opportunity to gut NEPA. And I get the frustration on the left. There’s little question that the environmentalist generation of 70s was anti-growth period, certainly when it came to industrial projects, and considered growth to be something to do with their homes, both size and value. I know it’s almost ridiculous to seriously debate policy in the Trump years. But I think it’s really important to consider what we do and do not want from something like NEPA given its history, the evils of corporate America, and its misuses by NIMBY greens.

The American Prospect, always good, has an important discussion of this issue. An excerpt:

The National Environmental Policy Act is an idealistic statute, according to Dinah Bear, longtime former counsel for the Council on Environmental Quality, in that it’s “premised on the basis that information actually matters; that people will act in a rational way upon getting that information.” But it is also pragmatic, in that the environmental review process is intended to expose risks to natural resources, community well-being, and even the developer’s reputation or bottom line, and to create an opportunity to mitigate those risks.

“One thing NEPA has usefully done is push mitigation,” said Dan Farber, Sho Sato Professor of Law at the University of California, Berkeley. “Even though it doesn’t stop the basic project, maybe they do somewhat less environmental damage.” One hurdle to this, Farber noted, is that there isn’t enough research into whether mitigation measures actually achieve their goals of reducing harm and protecting species. “We make a lot of predictions about how mitigation will work. We don’t follow this up to see what happened, and certainly not in any systematic way.” He suggested that more investment on the back end to ascertain how well mitigation measures actually work would improve the NEPA process.

Agencies aren’t the only ones who benefit from getting information from NEPA needed to make decisions. “I think it’s important from the environmental side, but I also think it’s fundamental to our democracy … for people to know what the government is doing,” Unruh Cohen said, noting that civil rights and environmental concerns both propelled the creation of NEPA. “It’s an environmental statute, but it’s bigger than that as well.”

Many critics of NEPA today view the legal challenges brought under the law as more of a bug than a feature. But complaints about too much process or too many lawyers tend to avoid discussion of outcomes: why opponents of a government action use available procedural tools to get at more substantive issues, and what the consequences of taking away that legal recourse could be.

“Litigation is fueled by opposition and legal ambiguity,” said Jamie Pleune, associate research law professor at the University of Utah. “If you deal with people’s concerns in an up-front manner that makes them feel they have been heard, or in a transparent manner where they feel the decision was resolved in a fair process, you are going to at least reduce opposition.”

Whatever its justification, limiting the public’s ability to sue when the executive branch operates outside of the laws passed by elected officials is an anti-democratic reform, particularly as the Trump administration has basically stopped enforcing environmental laws against polluters altogether.

Plus, as Erik Schlenker-Goodrich, executive director of the Western Environmental Law Center, observed, the “contested politics over a particular project would not go away in the absence of NEPA.” Schlenker-Goodrich said that in the absence of a clear mission, or when agencies have to balance conflicting priorities, as with the Bureau of Land Management’s multiple use mandate for managing public lands, agencies tend to be risk-averse. “They don’t want to be perceived as taking sides.” With contested projects, “they try to make everybody happy and in the process make no one happy.” Schlenker-Goodrich suggested that “mission clarification, real leadership, and real resources brought to the table can address much of that.”

Goodly bit to chew over here. Be interested to see how people think on the point.