Scholars Call Out Congressional Committee for 'Mythification' of NEPA

by James Goodwin | April 24, 2018

Tomorrow, anti-environmental members of the House Natural Resources Committee will hold a hearing provocatively titled, "The Weaponization of the National Environmental Policy Act and the Implications of Environmental Lawfare" – yet another in a long line of conservatives' attempts to justify myriad legislative attacks against this bedrock environmental law. As more than 100 CPR Member Scholars and other academic leaders explain in a letter to committee members, though, the hearing would be more aptly titled "The Mythification of NEPA." 

The apparent premise of the hearing is that the National Environmental Policy Act (NEPA) is being wielded as a "weapon" by public interest groups at the expense of responsible economic activity. Reality, as it so often does, does not corroborate the conservatives' narrative, however. 

Rather, the scholars' letter marshals actual data and statistics that together show that relatively few actions covered by NEPA are ever subjected to "environmental impact statements" or EISs,  the most rigorous procedure mandated under the law; that litigation over NEPA compliance is relatively rare, and what litigation does occur is comparable to instances of litigation in other administrative law contexts; and that, except in a few unusual cases, most NEPA procedures are resolved in a matter of a few years at most. Specifically, the letter makes the following five points:

  • A small percentage (1 percent) of federal actions require an environmental impact statement; most are covered by categorical exclusions or ...

NEPA and Climate Change: Another Basis for Defending the Clean Power Plan

by Joel Mintz | May 26, 2016
The Environmental Protection Agency's (EPA) Clean Power Plan – the agency's bold attempt to use the Clean Air Act to protect our health and the environment by regulating greenhouse gas emissions from new and existing power plants – has been challenged in court by some 28 states, 205 members of Congress, electric utilities, coal companies and other industries, some labor unions, and a few conservative, nonprofit law firms. In response, EPA's rule has been defended by the agency itself, 18 ...

Hurricane Katrina and the Perversity Thesis

by Thomas McGarity | August 26, 2015
In Albert O. Hirschman’s brilliant analysis of conservative responses to progressive social programs entitled The Rhetoric of Reaction, he identifies and critiques three reactionary narratives that conservatives use to critique governmental programs -- the futility thesis; the jeopardy thesis; and the perversity thesis. The futility thesis posits that governmental attempts to cure social ills or to correct alleged market imperfections are doomed to fail because the government cannot possibly identify the problem with sufficient clarity, predict the future with sufficient ...

CEQ Finalizes Guidance for Categorical Exclusions

by Holly Doremus | November 24, 2010
Cross-posted from Legal Planet. The White House Council on Environmental Quality has issued the first of three expected final guidance documents for federal agencies implementing the National Environmental Policy Act. This one, which covers the use of categorical exclusions, is an excellent start. NEPA is the “look before you leap” environmental law. It requires that federal agencies publicly evaluate environmental impacts before taking action. That means preparing an Environmental Impact Statement before taking actions that significantly affect the quality of ...

New NEPA Procedures for Offshore Drilling

by Holly Doremus | August 17, 2010
Cross-posted from Legal Planet. On Monday the White House Council on Environmental Quality issued a report on the NEPA analysis that preceded exploratory drilling at the ill-fated Macondo well in the Gulf of Mexico, together with recommendations for improving NEPA analysis in the future. According to CEQ, the Bureau of Ocean and Energy Management (successor to the disgraced Minerals Management Service) has already agreed to implement the recommendations. The report offers a detailed look at the chaotic and uncoordinated NEPA ...

What if MMS Had Followed the Law When Considering the Deepwater Horizon Permit?

by Dan Rohlf | May 19, 2010
As millions of gallons of oil continue to pour into the Gulf of Mexico, the Washington Post and New York Times reported that the Minerals Management Service (MMS) – the agency within the U.S. Department of Interior that oversees offshore oil and gas leasing and development – mostly ignored some of the country’s most important environmental laws when it gave the green light to Deepwater Horizon and other offshore drilling. The Endangered Species Act requires federal agencies to consult with ...

White House Draft Guidance on Climate Change and Environmental Impact Statements -- A First Look

by Daniel Farber | February 19, 2010
Cross-posted from Legal Planet. The Council on Environmental Quality has issued a draft guidance to agencies on treatment of greenhouse gases.  The key point is that emissions exceeding 25,000 tons per year of CO2 will be considered a “significant environmental impact” and require preparation of an environmental impact statement. Overall, of course, this is a huge step forward. One point that does deserve further attention is the discussion of land use. On a fairly quick read, I’m not clear on ...

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