The release earlier this week by the Trump administration's Council on Environmental Quality (CEQ) of updated rules implementing the National Environmental Policy Act was met with furious denunciations from leading environmental activist organizations. The Natural Resources Defense Council Senior Director Sharon Buccino asserted that the new rules "would gut the National Environmental Policy Act (NEPA)." National Wildlife Federation President Collin O'Mara also declared that the CEQ's "final rule effectively guts" NEPA, presenting "a clear and present danger to all Americans." Friends of the Earth Legal Director Marcie Keever stated, "The Trump Administration's attacks on NEPA are dangerous and unforgivable."
The NEPA, enacted in 1970 and signed by President Richard Nixon, requires federal agencies to undertake an assessment of the environmental effects of their proposed actions prior to making decisions. Among other things, federal agencies must prepare an environmental impact statement (EIS) if it is proposing a major federal action significantly affecting the quality of the human environment. Sounds reasonable, but, as many critics have pointed out, the statute and the EIS processes have evolved over 50 years to now function as a way for not-in-my-backyard (NIMBY) groups to roadblock infrastructure projects they dislike. For example, anti-nuclear power activists early on weaponized NEPA to stymie and then kill off the U.S. nuclear power industry.
In its final rule, the CEQ points out that the average length of an EIS is now 661 pages and typically takes 4.5 years to complete. The CEQ cites a study by the non-partisan reform coalition Common Good that estimated that the cost of a 6–year delay in starting construction on public projects costs the nation over $3.9 trillion, including the cost of prolonged inefficiencies and avoidable pollution.
"It took four years to build the Golden Gate Bridge, five years to build the Hoover Dam, and less than one year to build the Empire State Building," observed CEQ head Mary Neumayr in an op-ed. Such construction timelines under the old NEPA rules are unimaginable.
The activist groups chiefly object to how the new rules clarify that non-federal projects with minimal federal funding or minimal federal involvement, such that the agency cannot control the outcome of the project, are not major federal actions and thus do not require an EIS before proceeding. In addition, the activists decry the fact that the new rules require that EIS reviews consider only the reasonably foreseeable direct environmental impacts of proposed projects and not, as in the past, speculative indirect and cumulative effects.
Although the CEQ invited comment on whether there should be a threshold for "minimal federal funding," such as a percentage of a project's cost or a specific dollar figure, the agency did not set such a threshold. In their comments to the CEQ on revising NEPA, my policy colleagues at the Reason Foundation suggested that NEPA would only apply to federal actions with a value of at least $175 million and only if a project is "subject to Federal control and responsibility, and it has effects that may be significant." The new regulations also sets a time limit of two years for the preparation of EISs and a page limit of 150 pages for most cases.
By streamlining the NEPA regulatory process, the Trump administration has taken a step in the right direction toward overcoming the bureaucratic hurdles and legal wrangling that have made NEPA reviews inefficient, ineffective, costly, and extremely time-consuming.