Shifting Tides

March 1, 2024
Have NEPA changes gone too far?

By Justin Peterson, Contributing Author

The National Environmental Policy Act (NEPA) has been the focus of the nation’s recent shift in environmental policy. Given perceived heightened environmental and social awareness lauded by this generation and polity—particularly the emphasis on climate change and environmental justice—one would assume the recent amendments to the nation’s overarching policy for environmental stewardship would strengthen NEPA.

A reasonable assumption, but an incorrect one.

To evaluate consistency of recent changes to NEPA’s original intent, we must first understand the circumstances that lead to the creation of NEPA and its objective.

In summary, following concern over environmental or conservation issues in the 1950s and 1960s, and lack of coordination across the various federal agencies, U.S. Sen. Henry Jackson of Washington and his staff created a process to require the lowest federal decision-maker to identify objectives and impacts before committing funds for irreversible actions.

Before NEPA, federal agencies would frequently undertake conflicting actions, such as enlarging Everglades National Park in Florida while diverting water from the Everglades.

To this end, NEPA’s objective is to “encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation.”

At its core, NEPA is an informed decision-making process requiring coordination and critical thought. Moreover, it forces us to think about the effects our actions would have on future generations.

On June 3, 2023, Congress passed the Fiscal Responsibility Act of 2023, more commonly known as the “debt ceiling bill.” In typical fashion, the bill included many elements not germane to its primary reason: raising the debt ceiling.

Among these included amendments to NEPA, many of which are carryovers from the Trump Administration’s 2020 changes to the Council on Environmental Quality’s regulations for implementing NEPA.

The underlying reason for amending NEPA is economic growth—the amendments themselves are found in Division C: Grow the Economy—supported by the fallacy that the duration for environmental reviews is slowing economic growth.

This is a tenuous argument considering the United States still has the largest economy (measured by gross domestic product) and has enjoyed sustained economic growth since 1970, the year President Nixon signed NEPA into law.

To expedite the NEPA process, the Fiscal Responsibility Act sets, for example, time and page limits for environmental impact statements and environmental assessments. It even allows one federal agency to use categorically excluded actions codified by another agency.

These changes presume that NEPA takes too long and is itself the reason for the delay in project delivery. However, it is well documented that the most common delays are attributed to political shifts, design changes, cross-agency coordination, understaffing, and lack of funding.

The fundamental procedures are not the problem.

But perhaps the most pernicious amendment undermining NEPA’s original intent is the provision to circumvent the NEPA process entirely. Rather than following the NEPA process to make an informed decision that “encourage[s] productive and enjoyable harmony between man and his environment,” the act unequivocally states an environmental document will not be required if it conflicts with another law or is a nondiscretionary action.

It’s not difficult to imagine a scenario where the proponent of a major project, one typically requiring the preparation of an environmental impact statement, determines it would be more efficient to lobby Congress to “approve” the action for economic development reasons, and supports their argument with dubious claims that if carried out the NEPA process would put America at a disadvantage.

The amendments are overall inconsistent with NEPA’s original intent. The unintended consequences of this could take us back to the very circumstances that lead to the creation of NEPA in the first place: conflicting actions, uncoordinated agency decisions, environmental degradation, and diminished understanding of ecological systems.

Whether it is called NEPA or some other name, a planning process exists for all infrastructure projects to determine:

  • The need (i.e., a problem worth solving) for the action. 
  • the solution(s) to address the need. 
  • the constraints or conflicts (i.e., impacts) that may prohibit implementation of the solution(s). 
  • strategies (i.e., mitigation) to overcome the constraints.

NEPA gave this process a name and elevated the importance of multi-disciplinary decision-making. So rather than circumvent the process, we should embrace it. NEPA was not created to prevent a project, but to make it more harmonious with its surroundings. RB

Justin Peterson is a manager of Avenue Consultant’s Environmental Planning Group. For more than 16 years, he has implemented the NEPA process to support informed decision-making for electric transmission lines, interstate pipelines, renewable energy production, and transportation infrastructure improvements.

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