A Bill to Steamroll the NEPA Process

by Robert Glicksman

April 27, 2012

The irony is palpable, though clearly intentional.  More than forty years ago, Congress kicked off the “environmental decade” by adopting the National Environmental Policy Act (NEPA).  NEPA’s goals are to ensure that federal agencies whose developmental missions often incline them to ignore or place a low priority on environmental protection to consider the possible adverse environmental consequences of major actions before committing to them, and to make the results of that evaluation publicly available.  NEPA sought to assure balanced consideration of the economic and social benefits of proposed agency actions that tended to be the focus of private proponents and the agencies themselves, and the environmental costs that previously had received short shrift.  Assessments of NEPA differ, but many environmental policy experts agree that the law has effectively forced agencies to look at possible adverse environmental consequences before they leap into project approval and implementation.  NEPA’s most important practical impact may have been bringing to light environmental problems that agencies have been able to mitigate or eliminate at reasonable costs and without sacrificing project goals.   

Taking their cue from NEPA’s successful integration of environmental matters into agency decisionmaking processes, developers, industry, and their political allies in the ensuing years lobbied for and got a series of statutes and executive orders in the ensuing years that require agencies whose missions are to protect health, safety, and the environment to place greater emphasis on the economic impacts of regulatory decisions.  These laws have slowed down the regulatory process and contributed to weaker regulations.  Now, the same forces that sought to restore “balance” in the wake of NEPA’s focus on environmental concerns, by forcing regulatory agencies to place more emphasis on economic impacts, are supporting legislation that would significantly undercut NEPA by handcuffing the ability of agencies to conscientiously implement that law.  Adoption of this legislation would go a long way to recreating exactly the problem Congress targeted when it adopted NEPA – a skewing of government decisionmaking processes toward approval of projects regardless of their potential adverse environmental effects.

On Wednesday, the House Judiciary Committee’s Subcommittee on Courts, Commercial and Administrative Law held a hearing on the Responsibly and Professionally Invigorating Development Act of 2012 (the “RAPID Act”), sponsored by Representative Dennis Ross (R-FL).  The bill might just as well have been called the Thinly Veiled NEPA Destruction Act.  Purporting to “streamline” and enhance coordination of environmental review procedures, the RAPID Act would actually impair the ability of federal agencies to factor environmental concerns into their decisionmaking processes not only under NEPA, but under a host of other environmental and health protection laws.

The scope of the changes the RAPID Act would require in government decisionmaking processes, if read literally, is potentially breathtaking.  The Act is directed not only at the preparation of environmental assessments and environmental impact statements under NEPA, but also at any “regulatory review” and “permitting processes” for projects undertaken, reviewed, or funded by federal agencies.  Because the bill fails to define key terms, its sweep is unclear (perhaps intentionally so).  But it appears to cover actions under statutes such as the Endangered Species Act, the issuance of permits and other approvals by the federal land management agencies of public land use and development, and perhaps even permitting decisions by agencies tasked with protecting public health and safety, such as the Environmental Protection Agency and the Nuclear Regulatory Commission.

Among the many disturbing provisions in the RAPID Act, two seem directed at subordinating federal agency independence in environmental assessment to the project proponents and state agencies.  The bill would require a federal agency to allow a project proponent to prepare environmental review documents upon the proponent’s request in lieu of the agency’s preparation of its own documents.  The bill conditions approval of exclusive private preparation on oversight and independent evaluation by the federal agency whose approval is sought for the project, but ongoing resource constraints and the time limits for decisionmaking contained in the RAPID Act would as a practical matter impair and in some cases preclude effective agency oversight.  Even worse, the bill would authorize federal agencies to accept “voluntary contributions of funds from a project sponsor” to finance an agency’s environmental review and decisionmaking processes.  It is hard to imagine a provision more apt to give rise to blatant conflicts of interest and to skew agencies toward project approval.  The RAPID Act also requires federal agencies to adopt environmental assessments or impact statements prepared by state agencies, provided they are “substantially equivalent” to those prepared under NEPA.  Agencies such as some state highway departments are notorious for minimizing environmental concerns, and the bill does not even require the federal oversight and independent evaluation mandated for documents prepared by private project proponents.

One of NEPA’s great innovations was requiring agencies to consider alternatives to their proposals that might accomplish agency goals at a lower environmental cost.  Recognizing the critical role that this alternatives requirement plays in promoting NEPA’s consideration and disclosure goals, the RAPID Act’s sponsors have taken direct aim at it.  For example, the bill provides that cooperating federal agencies would only be required to evaluate alternatives that a project’s sponsor could feasibly undertake.  That may sound reasonable at first, but it isn’t. The courts have interpreted NEPA to require agencies to look beyond the goals of project proponents in defining and considering project alternatives.  This provision in the bill would allow private project proponents to control the range of alternatives considered and allow cooperating agencies to ignore alternatives that are not “technically and economically feasible,” apparently without regard to the magnitude of a project’s potential adverse environmental consequences.  The point of NEPA is to require agencies to compare the full range of economic benefits and environmental costs.  The RAPID Act would allow the limits of a project sponsor’s economic capabilities to render significant adverse environmental impacts irrelevant.  Just in case the downgrading of environmental factors isn’t sufficiently clear, the Act would require the evaluation of each alternative in an environmental impact statement to identify a proposal’s potential effects on employment.

The RAPID Act’s “streamlining” efforts take the form of time limits placed on agencies to prepare NEPA and other environmental review documents.  In many cases, agencies should be able to meet these deadlines.  But the bill fails to address adequately the ability of agencies to engage in meaningful environmental evaluation of complicated projects or projects impacted by changed circumstances late in the review process.  Project proponents could game the system, such as by withholding important information from agency evaluators or submitting voluminous comments objecting to an agency’s draft impact statements or assessments.  Perhaps that’s the point; the more obstacles project proponents create, the less likely it is that the agency will be able to meet statutory deadlines for completion of NEPA review documents. This scenario is extremely troublesome because the bill provides that if an agency fails to approve or disapprove a project or make a required finding within the applicable deadline, “the project shall be deemed approved.”  Project proponents therefore have a built-in incentive to stall.  The bill also seeks to hamstring those who oppose agency projects on environmental grounds by limiting judicial review opportunities, such as by imposing short deadlines for filing lawsuits to challenge projects based on the inadequacy of agency environmental reviews.

In light of these and related provisions, it is hard to disagree with the assessment of Dinah Bear, the General Counsel of the Council on Environmental Quality (which supervises NEPA compliance across the federal government) during most of the Administrations of Presidents Reagan, Bush, Clinton, and Bush.  In her testimony on Wednesday, she identified “a consistent theme in the bill that the foreordained outcome of environmental review and compliance processes should be the rapid approval of all proposed projects.”  That is not a surprising tact if one assumes, as some critics of the environmental laws have repeatedly done in the past couple of years, that environmental protection initiatives cause economic harm with no offsetting public health or environmental benefits.  That assumption, of course, is demonstrably false.

The steamrolling approach to project approval in the face of environmental review stands in marked contrast to the approach reflected in “regulatory reform” legislation that is pending in Congress.  As CPR Member Scholar Sidney Shapiro has pointed out, some of the pending bills would so encrust the decisionmaking processes of protective agencies such as the Environmental Protection Agency that they would literally add years in some cases to the time it takes for agencies to issue new protective regulations.  Instead of streamlining decisionmaking processes under laws like the Clean Air and Clean Water Acts, these bills would mire EPA and other agencies in so much process and paperwork that the flow of protective regulations would slow to a crawl, which is, of course exactly what the regulatory “reformers” intend.  The order of the day, therefore, seems to be to put a screeching halt to protective regulations while greasing the skids for projects with potentially adverse environmental consequences.

Lost in the din created by those who harp on the obstacles that NEPA places in the way of economically beneficial projects is the fact that NEPA has no substantive mandate.  It only requires consideration and disclosure of environmental factors so that the government makes informed decisions.  Regardless of what an environmental impact statement prepared under NEPA says, the preparing agency is free to implement any project that its organic statute and the spotlight of public scrutiny allow.  The RAPID Act would short-circuit and artificially constrain the scope of NEPA’s environmental assessment processes.  If the object of the Act’s supporters is to produce documents that highlight a project’s economic benefits while giving short shrift to the possibility of adverse environmental consequences, there is little question that the Act would accomplish that goal.  Such a result, however, would turn NEPA on its head.

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Robert L. Glicksman is the J. B. and Maurice C. Shapiro Professor of Environmental Law at the George Washington University Law School. He is a member of the board of directors of the Center for Progressive Reform.

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