The National Environmental Policy Act (NEPA) process plays a critical role in the development of the nation’s infrastructure in that it was meant to be a tool based in sound science and analysis for considering environmental impacts as we make important infrastructure decisions. Unfortunately, over the last 50 years, it has often become an expensive and years-long slog of administrative processes and litigation. It is time to fix the NEPA process and the Trump administration’s proposed rule changes provide a window of opportunity to do that.
We need to fix the NEPA process now. That’s not a political statement — it’s just reality. The American Society of Civil Engineers estimates we need to invest $4.6 trillion over the next 10 years to fix and update the country’s infrastructure. The economic consequences of not making this investment will reach $4 trillion in GDP losses and $7 trillion in lost business sales by 2025 alone. These numbers rise further if we include investments that are vital to responding to the immediate threat of climate change, such as infrastructure, to improve the resilience of our energy systems and technologies that will reduce greenhouse gas emissions.
Regardless of whether you think our highest priority infrastructure developments are new roads, drinking water facilities, solar and wind power projects, or natural gas pipelines, a constructive NEPA process is critical to ensuring decisions about those projects are made in a timely, effective and informed way. The administration has proposed streamlining the existing process. Yet, even before the proposal was officially released, the potential changes drew heated commentary, both positive and negative and largely along political lines.
Many comments about the proposal have focused on specific projects the commenters want to build or to stop. But virtually all comments ignore the fact that NEPA is about a process, not an outcome.
The purpose of NEPA, enacted by Congress and President Nixon in 1970, is not to decide which energy or infrastructure projects get built or where they get built. Rather, it is to establish a process to help government decision makers and the public evaluate the possible environmental impacts of projects as well as potential alternatives that could reduce these impacts. Properly designed and used, the process can help us make better and more informed choices.
NEPA’s purpose is as important today as it was in 1970. But over the last 50 years — and with a set of governing rules that have not been significantly updated since the 1970s — the process has grown into a long, confusing and expensive war of attrition through administrative processes and too often litigation. It has created a tangle of complex agency rules and exclusions and given rise to armies of consultants and lawyers who spend entire careers “doing NEPA.”
We need to recognize what NEPA does and does not do. NEPA does not mandate outcomes or determine which projects get built or where. NEPA does not and cannot change the protections afforded by environmental laws such as the Clean Air and Acts, the Clean Water Act, the Endangered Species Act, Safe Drinking Water Act and others. NEPA does require that we assess the potential environmental impacts of projects that receive funding or permits from the federal government, and (in certain cases) requires that potential alternatives be identified that could reduce significant impacts.
To assess the administration’s proposed rule changes, we should ask: What changes will best allow the government and public to fairly evaluate the potential environmental impacts of infrastructure projects to make informed decisions in a more timely and cost-effective way? If the administration’s proposed revisions do that, they are good. If not, what changes would? The status quo is not a viable option.
To address our infrastructure needs while keeping people safe and the economy strong, we must ensure the NEPA process is one where analytical, science-based analysis can be done in a reasonable period, and decisions can be made with the certainty and urgency our needs require.
It is no surprise that commenters have jumped out with predictable rhetoric. What is news is that anybody is actually trying to untangle and improve the NEPA process. The current process must be fixed, and the administration’s proposal presents an opportunity to do so. Let’s take advantage of this opportunity to focus on the laudable original purpose of NEPA and adopt rule changes that will help us make better informed decisions that protect our environment with the efficiency needed to enable our country to grow and prosper.
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Dr. Melissa Lott is a senior research scholar at the Center on Global Energy Policy (CGEP) at Columbia University, where she leads the center’s renewables and power sector research program. She was previously a presidential management fellow at the Department of Energy during the Obama administration.
David R. Hill is an attorney and Adjunct Senior Research Scholar at CGEP. He previously served as executive vice president and general counsel of NRG Energy, Inc., and general counsel of the Department of Energy during the George W. Bush administration.