Environmental policy reforms are long overdue

Anyone who proposes major infrastructure or energy projects must fight their way through the drawn out, expensive task of getting government permits. Without those permits, nothing happens. Recognizing this, many progressive green groups have embraced the tactic of miring permit applications in the quicksand of litigation before they can even get off the ground. But a proposal to change key federal regulations could throw a lifeline to permit applicants while still ensuring environmental protections remain.

Congress passed the National Environmental Policy Act (NEPA) in 1969 as part of a response to our growing awareness of the impacts of human activity on the natural environment. Under NEPA, each major infrastructure project must have a detailed environmental impact statement that describes its short- and long-term effects, as well as alternatives that could reduce them. About 170 major projects must undergo this scrutiny each year, and more than 10,000 smaller projects undergo the less intense environmental assessment process.

The White House’s Council on Environmental Quality oversees NEPA implementation, monitoring impact statements and reporting its findings to the president. Unlike other federal agencies, the council was not granted enforcement powers, so NEPA initially was viewed as a safe, feel-good statement of intent. But enterprising environmental groups soon found that litigating the procedural provisions of NEPA was an effective way to halt development.

They typically argue that impact statements do not address the complete list of potential environmental harms — a mobile target with an always-growing list. They also claim that governments and businesses do not do enough to solicit public comment. These arguments have found a welcome reception in courts, meaning NEPA quickly moved from feel-good legislation to one of the nation’s most powerful environmental laws.

Federal regulations recommend that mandated environmental impact statements “shall normally be less than 150 pages,” and allow “for proposals of unusual scope or complexity” to go up to 300 pages. But fear of litigation aimed at stopping projects has ballooned the size of the average statement well past the recommended limits to over 600 pages. Rather than attempt to address big-picture environmental concerns, those who prepare the statements now struggle to placate litigious environmental attorneys by cramming them with every minute detail.

As the size of the documents has grown, so has the time required to review them. Reviews now take, on average, four and a half years, as documents get trundled back and forth from one federal agency office to another. Some reviews have taken more than a decade. But this is a feature of the process in the green playbook. Green groups know that with endless legal bills and extended timelines, banks and supporters will lose interest, trapping projects in bureaucratic quicksand. 

Some may celebrate this outcome. But we should remember that these major projects add immense value to all of our lives. They allow us to communicate with the nation and the world. We use them to generate and transport the energy that powers our lives. These infrastructure projects allow us to travel over roads and bridges, or through the air, and they allow us to complete essential forest management tasks that can stop destructive wildfires.

Their value explains why streamlining the NEPA review process has been enthusiastically supported by a diverse group of elected officials, the construction and agriculture industries, labor unions, outdoor recreationists and policy experts (including the Mackinac Center, where I work). Simply put, streamlining is long overdue.

The president’s proposal builds on a 2017 executive order that created a “one federal agency decision policy.” That order also required a “lead federal agency” to head up the permit review processes and provide a final ruling on projects within two years.

Proposed changes to NEPA would reinforce the 300-page limit for environmental impact statements, encourage agencies to share documents electronically, and require joint agency reviews that provide a “single record of decision” from the lead agency. The changes would  require that agencies seek out public comment earlier in the process and would clarify the definition of ambiguous terms such as “environmental effects.” Agencies’ decisions would need to establish a reasonable connection between the proposed project and any expected environmental impacts.

Additionally, the changes President Trump calls for are focused only on streamlining the process of reviewing — either approving or denying — permit applications. That means the protections provided by other important environmental legislation, such as the Clean Air Act or the Clean Water Act, won’t be revoked.

Updating the NEPA review process will help us to improve and expand on needed pipelines, roads, bridges and 5G wireless networks. These long-overdue updates should be applauded as one key way of invigorating our economy, while still maintaining vital environmental protections.

Jason Hayes is director of environmental policy at the Mackinac Center in Midland, Mich. Follow him on Twitter @jasonthayes.