In 2011, President Obama issued a presidential memorandum urging federal agencies to “take steps to expedite permitting and review,” including “setting clear schedules for completing steps in the environmental review and permitting process.” Such bureaucratic delays, Obama explained, interfered with the “engine of job creation and economic growth[.]”
In recognizing the significant costs that excess bureaucracy imposes, Obama was in good company. Presidents of both political parties long have sought to make the National Environmental Policy Act (NEPA) — a federal statute that requires agencies to produce reports on the environmental effects on their actions — work for the American people.
In 1981, for example, President Reagan’s Council on Environmental Quality, a White House agency charged with implementing the statute, issued guidance encouraging agencies to complete these reviews within 12 months. In 1997, President Clinton’s Council on Environmental Quality reported that agencies were producing overly long environmental reports, at great expense and delay, in an unsuccessful attempt to “litigation-proof” their decisions without any apparent improvement in quality (or reduction in litigation).
Despite these bipartisan efforts, NEPA’s problems keep worsening. Agencies do not systematically track the costs and expense of complying with NEPA (a common problem in environmental statutes). Still, the available data reveal a process that is somehow even more bloated and bureaucratic than when Clinton’s Council on Environmental Quality criticized it.
According to a report by the Federalist Society’s Regulatory Transparency Project, the average time required to complete a NEPA review has steadily risen from 2.9 years in 1998 to 3.8 in 2006, to 4.2 in 2010, and 5.1 in 2016. The reports produced through this process have grown increasingly unwieldy, from a median length of 650 pages in the 1990s to 1,600 in the 2010s. The government-wide cost to produce all this paperwork is likely between $1 billion and $5 billion per year.
And all this effort has not slowed disruptive litigation. Federal agencies have been sued under NEPA at least 4,000 times, in part because of federal laws incentivizing lawsuits through generous attorneys’ fee awards. And these lawsuits reflect a clear bias. Courts decline to review NEPA challenges to certain regulatory decisions, such as the designation of private property as “critical habitat” under the Endangered Species Act. Attorneys’ fees are disproportionately awarded to a small number of environmental litigation groups.
This would be concerning even if it affected only a small number of traditional public projects. But as federal agencies’ power over our everyday lives has grown and grown, so too have the consequences of bureaucratic processes such as NEPA for individual liberty and private property rights.
This month, President Trump’s Council on Environmental Quality proposed the most comprehensive reworking of NEPA regulations in four decades, intending to finally solve some of these problems. Among the changes outlined are a formal goal of completing environmental reviews within two years, establishing a presumptive page limit of 300 pages, and clarifying how agencies should decide what environmental effects to focus on.
Critics of the proposal charge that this undermines public participation and informed decision-making. The first objection can be answered easily. Most people reading this never have seen — much less attempted to read — a draft environmental impact statement, and the few who tried to review one likely got discouraged well before they reached page 1,000 of the document. A complicated, years-long process favors litigious special-interest groups at the expense of participation by ordinary people.
Informed, reasoned decision-making is a goal that few oppose. But in NEPA’s case, agencies extensively analyzing every minor or speculative impact can have a significant cost and one that likely exceeds any benefit. Nor is this simply an economic development versus the environment issue. The delays and expense associated with an overly bureaucratic process also pose real environmental costs. Most directly, they deplete funds that agencies otherwise might spend advancing their missions.
More significant, if less obvious, is that NEPA’s delays and expenses can undermine innovation. Erecting substantial obstacles to new facilities creates a competitive advantage for existing competitors, even if those existing facilities have more significant adverse environmental impacts.
Finally, doing nothing risks wholesale exemptions from environmental review for politically salient projects. Congress has authorized the president to waive a host of environmental regulations to build border infrastructure and has considered similar exemptions for other infrastructure projects. A more efficient NEPA process likely would reduce political pressure for such exemptions.
The reforms are at the proposal stage and open for public comment. That process is almost certain to reveal shortcomings of the proposal, which is the point of soliciting public comments, as well as opportunities to streamline the environmental review process further so that it can serve even better the needs of people and the environment. But don’t be misled by claims that there’s no problem to solve. There is, and it’s a problem that affects both the economy and the environment.
Jonathan Wood is a senior attorney with Pacific Legal Foundation and a research fellow with the Property and Environment Research Center. Follow him on Twitter @Jon_C_Wood.
This op-ed was originally published by The Hill on February 6, 2020.