Modernizing NEPA for the 21st Century

The White House Council on Environmental Quality recently released a set of provisions to update the National Environmental Policy Act regulations. The proposed updates would streamline the current process for allowing new developments to be built on American soil. 

This update to NEPA’s rules, which have remained more or less unchanged for 50 years, is long overdue. And it’s a change that business leaders and environmentalists alike should embrace.

Originally signed into law back in 1970, NEPA was created as a procedural statute that requires federal agencies to assess and avoid the environmental impacts of major federal developments. Since NEPA was enacted, our federal agencies have become mindful of the damaging impacts human development can have on our natural resources.

Because of it, we have cleaner water, cleaner air and less pollution overall in our nation. It was an important and forward-thinking law when it was enacted, and our environment has undoubtedly benefited from NEPA. But that’s hardly the full story.

Under NEPA, when federal agencies review the potential impacts of a major federal action, such as permitting a natural gas pipeline, a highway or expanding an airport, the process often requires the preparation of an environmental impact statement. The purpose of an EIS is to assess the environmental and social impacts of a project in the area where it is planned to be built and consider various alternatives. Sometimes the impact on the environment, such as destroying wetlands and encroaching into critical species habitat, is deemed to be too harmful to allow the project to proceed — and often, that’s a good thing.

However, an EIS can also be used to stop a deserving project in its tracks. Under the current NEPA process, there is no limit to the time an EIS can take to assess the impact of a project.  Many projects require multi-agency approvals that, if not properly coordinated, can take years to obtain.

So, when an outside party doesn’t want a project to move forward, the EIS can be an effective tool to delay construction and depress investment and innovation. Those misusing NEPA in this way often have competing business interests or parochial motives, such as “NIMBYism,” unrelated to the environmental impacts.

Too many times, EISs have been used to stop developments that would actually help the environment — such as advancing sustainable energy or replacing old equipment and infrastructure that causes more pollution. In some cases, these delays have even put communities in greater danger.

Years ago, an airport runway expansion in Taos, New Mexico, was proposed, and pilots using the airstrip went on record to say the expansion was needed to increase accessibility and safety. But due to issues within the NEPA review process, that expansion was delayed more than 20 years.

Another example is the Cape Wind Energy Project off Nantucket Sound. The wind project would have slashed emissions by 1.6 million metric tons per year. Even though the project was an obvious boon for the environment, it was delayed for more than 16 years and eventually canceled altogether.

The list of instances where NEPA has been misused could go on and on. But if the new provisions go into effect, NEPA misuse may soon be a thing of the past.

The Trump administration began peeling away at some of these problems last year with the One Federal Decision policy, an executive order that expedited authorization procedures for major infrastructure projects by ensuring that federal agencies agree on a joint project schedule at the outset. EISs and environmental assessments would have to be completed in no more than two years and one year respectively. The CEQ proposal would codify and expand upon One Federal Decision.

As a policymaker, I have seen the law work both ways — for good and for bad. The new changes would tighten the procedures that have allowed people to misuse NEPA by limiting the term of the assessment, a change that has been badly needed for years. But Congress must also act to limit frivolous lawsuits based on unconstrained and unending NEPA reviews.

We must not allow NEPA to be used to obstruct investment and block new infrastructure, especially when those investments will result in a healthier environment. As our energy sector continues to transition to cleaner alternatives, new developments will continue to be proposed: projects like wind farms, solar plants, liquid natural gas plants, advanced nuclear facilities and biowaste facilities.

If we allow the NEPA review process to hinder these important advances in our nation’s clean energy future, then America’s natural resources and our health will pay the price for our inaction.

To create a set of environmental protections that will function and continue to be relevant throughout the 21st century, we must streamline NEPA’s permitting process without delay.  Congress has previously made similar reforms under FAST-41 for surface transportation projects, and it should continue to build upon these same reforms.

Allowing antiquated regulations to go unchanged will only delay our transition to a cleaner economy. Our nation is a very different place than it was in 1970 when NEPA was created, and now we need the law to reflect the true nature of the world today.

Jeff Kupfer is president of ConservAmerica, a Washington, D.C.-based nonprofit organization committed to educating the public and influencing the national conversation about conservation and energy policy.

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