Scholars Call Out Congressional Committee for ‘Mythification’ of NEPA

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 environmental assessments (i.e., shorter procedures for complying with NEPA's analytical requirements).  
• The small subset of actions that require an EIS represent significant decisions – the type that warrant being subject to NEPA analyses and public review processes.  
• While EISs take several years to complete, the examples raised by critics of NEPA are often extreme outliers that are not representative of NEPA processes generally.  
• Neither the number of NEPA cases filed annually, which is low and consistent across time, nor the outcomes of these cases suggest that NEPA litigation is being abused or used for the sole purpose of strategic delay.  
• For most federal agencies, a NEPA lawsuit is a rare event, and the claims that NEPA poses a significant burden have little basis in fact.

The bottom line, as the scholars note, is that NEPA continues to serve the purpose for which it was created: "informing government decisionmakers and the public about the environmental consequences of federal actions." The benefits of this informed consideration by government decision-makers – and of the ability of ordinary citizens to hold government decision-makers accountable to ensure this informed consideration actually takes place – more than justify the relatively minimal costs that compliance with NEPA procedures and any resulting litigation might entail. 

To be sure, the NEPA process could always work better and faster. The problem, though, hasn't been excessive reviews and analyses, but a lack of adequate resources for relevant agencies to conduct these reviews and analyses as expeditiously as possible. In our constitutional system of government, it is Congress that holds the purse strings, as the conservative members of the House Natural Resources Committee well know. If they want quicker action under NEPA, the biggest barrier has been and continues to be self-imposed.