Reason Foundation Comment: Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act. CEQ–2019–0003 (85 FR 1684)
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Commentary

Reason Foundation Comment: Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act. CEQ–2019–0003 (85 FR 1684)

The proposed reforms will likely help streamline the NEPA process and result in fewer preliminary injunctions being issued by courts.

The National Environmental Policy Act (NEPA) of 1969 was introduced on the premise that the United States needed “a national policy to deal with environmental crisis, present or impending.” However, in the ensuing decades, NEPA has arguably been used less as means of addressing environmental problems and more as a means of deterring certain kinds of economic activity, even when that activity is likely to yield net environmental benefits.

Many of the problems associated with NEPA emanate from its lack of a requirement to consider costs or even prioritization. This is true both for the original mandate and for the 1977 CEQ regulations that currently govern implementation of NEPA. Other problems are related to NEPA being ill-defined, broad and vague.

In 2018, Congressman Rob Bishop (R, Utah) observed in a congressional hearing, which he hosted as then Chairman of the House Natural Resources Committee, that “Due to NEPA’s vague and ambiguous language, the law’s purpose and administration has largely been defined not by congressional intent or agency rulemaking, but rather litigation, court rulings, and ad hoc decision making of agencies operating out of fear of the next lawsuit for projects large and small. As a result, the NEPA process is now an ever-expanding coagulation of regulation, guidance, and caselaw.”

Meanwhile, as Daniel Mandelker has noted: “Experience has shown that [the NEPA] process is over-elaborate, redundant, and not responsive to the needs in NEPA decision making.”

Not unrelated is the Equal Access to Justice Act, which seemingly enables special interest groups (who claim to represent the public broadly) to litigate with impunity.

As Mark Rutzig has noted, the resulting lawsuits by environmental groups have “vastly enlarged the already unreasonable NEPA reporting duties mandated by CEQ.”

But Rutzig notes that, “The CEQ regulations—which fill over 30 pages of the Federal Register—lie at the heart of NEPA’s unexpected impact.”

The proposed rulemaking, with its goal of “more efficient, effective, and timely NEPA reviews” is a venerable attempt to update the 1977 regulations. This comment analyses whether these overall objectives will be accomplished by the proposed rulemaking and what other measures might be taken to achieve these objectives. It focuses on the broad swath of reforms proposed in the NPRM and some specific elements of those reforms that seem particularly pertinent.

The comment begins with a description and analysis of proposed caps on the amount of time agencies take to complete final environmental impact statements (EISs) and the number of pages that may be included in such EISs. It focuses in part on problems created by the NEPA process for the Federal Highway Administration (FHWA), Bureau of Land Management (BLM), and U.S. Forest Service (USFS), and considers whether the proposed rulemaking will affect the ability of the FHWA to advance with highway infrastructure projects, and the USFS/BLM effectively to carry out their respective agency duties (i.e. land management).

The comment then offers constructive suggestions for additional reforms that might further mitigate the problems imposed by NEPA.

The final section raises some particular concerns and questions that should be considered, specifically because the proposed rulemaking could be more aggressive. As a public policy tool, NEPA can certainly enable agencies to achieve multiple goals—including infrastructure development, superior management of public lands, and environmental protection.

Reason Foundation Comment On: Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act. CEQ–2019–0003 (85 FR 1684)

Julian Morris is a senior fellow at Reason Foundation and executive director of the International Center for Law and Economics.