NEPA
What’s So Special About NEPA?
Guest contributors Dinah Bear and Niel Lawrence argue that the National Environmental Policy Act process provides unique and wide-reaching benefits.
Attacks on our federal environmental charter, the National Environmental Policy Act, or NEPA, have escalated from seeking the statute’s truncation to its outright abolition. Increasingly bandied about is the claim that while all well and good when passed in 1969, NEPA is now superfluous because we have a whole series of other laws protecting specific resource and places. This ill-founded contention misses what is unique about NEPA and why we benefit from it, today as much as ever.
NEPA is our one, full-spectrum, nationwide mechanism for getting agencies to use their discretion better. Other, resource-specific,federal environmental laws are prohibitory, setting minimum protective standards as a floor under agency discretion. They provide a basic “thou shalt not” for individual resources and values. NEPA’s focus is on the positive, the field of possibilities, not what agencies have to avoid but rather on how to do best what they can do—over and above those often bare-bones minimums. As applied, if well and conscientiously implemented, NEPA equips and nudges agencies toward decisions that are smart, well-informed, and responsive. In so doing, it confers three critical benefits on the public.
Permit Certainty
Revised SPEED Act tries to give certainty to permit holders, and probably fails.
The SPEED Act will be up for a vote in the House of Representatives later this week, and the vote will likely be close. The Act is an effort to do permitting reform for NEPA compliance, in theory to accelerate reviews and provide more certainty about what those reviews cover. I’ve already provided an assessment …
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CONTINUE READINGFixing Fix Our Forests
The emergency provisions of Fix Our Forests are a key weakness in the bill
The permitting reform bill that has made the most progress through Congress is the Fix Our Forests Act, which I’ve written about here, here, and here. And as I’ve written before, fixing fire management on federal lands should be a top priority for any reforms. I’m not sure that the model of Fix Our Forests …
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CONTINUE READINGA start on feasible permitting reform
A proposal from the National Governors’ Association is narrow and focused, and that’s good
I’ve written recently about the difficult politics of permitting reform at the federal level. But that doesn’t mean that there isn’t important work to be done. It does mean that successful proposals will have to be, as I wrote, low salience, thoughtful, and unlikely to provoke polarization. The National Governors’ Association has just come out …
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CONTINUE READINGProblem solved?
Bipartisan proposal for permitting reform from Problem Solvers Caucus is a good first step, but has much more work to do
The permitting reform conversation continues in Congress – this time with a long set of proposals from the bipartisan Problem Solvers Caucus, based on a range of conversations with different stakeholders and interest groups. There is much that is good in this set of proposals, but there are also proposals that require more thought, or …
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CONTINUE READINGFirst Monday? More Like ‘First Moanday.’
Since conservatives got a supermajority on the Supreme Court, it’s been on an anti-environmental tear.
Never say never. Maybe someday the Court will surprise us with a big win for the environment. But it would be foolish to count on that. We can also hope that the Court will do other good things, such as reining in Trump’s executive overreach. But it would be foolish to count on the Court to take a stand in favor of environmental protection.
CONTINUE READINGNEPA Update: The Other Shoe Drops
A New D.C. Circuit Case reads the Seven County decision for all it is worth.
Based on the facts as set forth by the D.C. Circuit, its decision in the Tennessee Pipeline case may have been right. But the opinion went astray with its unrestrained enthusiasm for deference in NEPA cases, and its assumption that the same rules carry over in reviewing decisions under other statutes like the Natural Gas Act.
CONTINUE READINGReinventing NEPA
What do we really want NEPA to do? And what’s the best way to do it?
Imagining reform legislation from Congress is difficult, but it’s worth imagining, if only as a thought experiment, how we could do better. I would suggest we start by asking what we can expect NEPA to accomplish after fifty years of judicial decisions and agency practice – and whether there are better ways of accomplishing those things.
CONTINUE READINGPermitting reform in the Trump Administration
It’s hard to do a deal when one side can’t be trusted to keep their side of the bargain
There’s more chatter about permitting reform again in Congress. I’m supportive of the concept, and thought the deal on the table at the end of the Biden Administration was probably worth doing. So there are now bipartisan efforts to amend NEPA, and also to do a broader permitting reform bill. I’ll leave specific analyses of …
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CONTINUE READINGSPEED bump?
Recent proposal for NEPA reform in House of Representatives is sweeping and perhaps counterproductive
The House of Representatives recently held a hearing on the SPEED Act, a proposal for NEPA reform advanced by Representatives Westerman (R-Arkansas) and Golden (D-Maine). While the public announcement by the majority for the bill is that it is simply “commonsense upgrades,” a close review indicates that it would produce potentially dramatic changes to NEPA, …
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