The National Environmental Policy Act is a marvel of bipartisan eloquence. Enacted almost 50 years ago to make federal agencies “look before they leap,” NEPA gives federal officials the tools to make informed decisions, in part by providing for public input. And yet due to a perception that its requirements unnecessarily slow down infrastructure projects, administrations of both parties and Congress have sought to “fix” the process. What NEPA needs now, rather than even more reform, is a proper chance at implementation of the reforms of the last two decades.
President Trump issued Executive Order 13807 to accelerate the environmental review and permitting for complex infrastructure projects that require an Environmental Impact Statement under the law. The EO establishes a two-year goal for completing an EIS, in most cases requiring a single NEPA Record of Decision to be issued jointly by all federal agencies whose approval or review is needed for a project. It also requires all other federal permits and approvals to be issued within 90 days after the EIS.
This executive order is just the most recent in a line of efforts to improve the environmental review and permitting process. It follows environmental streamlining provisions included by Congress in transportation legislation like SAFETE-LU, MAP-21, and the FAST Act, as well as President George W. Bush’s Executive Order 13274 and President Obama’s Executive Order 13604.
There’s no mystery about the desire to find a way to plan, design, and construct projects more quickly. Our nation’s infrastructure is in dire need of repair and replacement. Modernizing the networks that make life as we know it possible — for transportation, energy, water, waste, and information — is literally an opportunity to build the foundation for America’s future prosperity. Thus, proffering solutions to remedy the perceived barrier to progress that is imposed by NEPA review is a siren call that few can resist.
But the reality is that NEPA is not the only, or even the primary, impediment to delivering faster, better, and cheaper infrastructure projects. In 2012, the Congressional Research Service concluded that evidence shows overwhelmingly that the causes of delay are more often tied to agency priorities or project-specific factors, such as funding levels, local opposition, complexity, or late changes in project scope.
That is not to say that there isn’t room for improvement. There is. As I know from experience, NEPA documentation could be far more concise and reader-friendly. Categorical Exclusions (the simplest, most straightforward level of review under the statute) could be shared across all involved agencies. Redundant reviews and conflicting agency processes could be eliminated. And the list goes on, depending on whom you ask.
My point here is that rather than continuing to make radical changes to a foundational environmental statue, we should engage in thoughtful implementation of the streamlining efforts we already have on the books. Otherwise, the danger is that changing the process every few years in response to the desires of a new Congress or administration may result in an overly complicated jumble that increases confusion, delay, costs, and litigation — to the satisfaction of none of the involved parties.
Rather than a patchwork of reforms, the agencies, companies, and other stakeholders involved in delivering our country’s infrastructure projects need a consistent process. We need greater predictability in process rather than unrealistic acceleration of reform goals.
Agencies, project sponsors, and community stakeholders can use the NEPA process, as it stands today, to deliver faster, better, cheaper projects by working collaboratively to identify issues and earnestly striving to avoid, minimize, and mitigate impacts.
The formula for success is straightforward. At the very beginning of a project, all stakeholders — including federal and state regulatory agencies — should engage in meaningful coordination to reveal innovative solutions and uncover hidden pitfalls. Doing that can have a real payoff for all affected parties.
Next, the agencies involved should work concurrently rather than sequentially in preparing their analyses and documentation.
Finally, each project needs a champion within every agency involved to move the ball along. By building on the successful strategies of its predecessors, Trump’s Executive Order 13807 provides federal agencies a framework for using this formula. It’s time to allow agencies to implement this framework.
Attempts to streamline the NEPA process will continue. My hope is that additional reforms will make the procedure more efficient while maintaining critical protections for our valuable natural resources and producing positive outcomes for affected communities.
Copyright ©2019, Environmental Law Institute®, Washington D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, May-June.