NEPA: The Accepted Lies and Mistakes About This Critical Environmental Law

This op-ed was originally published by The Revelator. Partially reprinted under Creative Commons license BY-NC-ND 3.0.

Suppose a friend calls you up and says he wants you to invest a million dollars in a new company that he heard is going to make tons of money. Before you decide whether to do so, wouldn’t you expect to know what the risks of losing your money might be? Wouldn’t you investigate the people who are going to run the new company and the kind of activities they intend to engage in, so you have a sense of whether it’s a safe thing to do with your money?

That’s the common-sense idea behind the National Environmental Policy Act, whose adoption by Congress kicked off the “environmental decade” of the 1970s.

NEPA requires government agencies to use a transparent process with meaningful public participation to consider the potential environmental effects of their actions before committing to them. It is one of the United States’ bedrock environmental protection statutes and has been so widely emulated in other countries that it has become known as the “Magna Carta” of global environmental law.

In the U.S., however, NEPA has recently been the subject of withering scrutiny and attack by critics across the political spectrum. Its opponents have called for the narrowing of NEPA’s scope and the “streamlining” of its processes, charging that the Act’s core mandate to “look before you leap” has spun out of control and created unintended and massive obstacles to approval of critical infrastructure.

These criticisms have prompted corrosive actions by all three branches of the federal government that have weakened NEPA and impaired its ability to serve its valuable, intended functions.

Congressional actions: Proposals to adopt “permitting reform,” often simply a euphemism for weakening NEPA, have been the subject of congressional debate and legislation for over a decade. Congress adopted a series of subject matter-specific exemptions and provisions to accelerate NEPA review in 1996, 2005, 2014, and 2018.

In the Fiscal Responsibility Act of 2023, it also enacted extensive amendments that authorized the enhanced use of “categorical exclusions” from the NEPA process and required agencies to move through that process much more quickly when NEPA does apply.

Notwithstanding all of these laws, the reconciliation bill currently being crafted in Congress proposes further curtailments to environmental reviews. These provisions include the creation of unprecedented shortcuts for developers, including exemption from judicial review — as long as they agree to pay for and carry out the NEPA analysis process. Because the federal courts have been the primary forum for enforcing NEPA since its inception, this mechanism risks turning NEPA into a “paper tiger” that looks good on the page but has no real teeth.

Executive actions: In 2020 the first Trump administration adopted the first significant revisions to the regulations of the Council on Environmental Quality that govern agency compliance with NEPA since their initial adoption in 1978. These revisions sharply scaled back opportunities for public input, completely contrary to Congress’ intent when it enacted NEPA in 1969. The Biden administration essentially restored the pre-2020 status quo while retaining some of the streamlining the critics desired.

But the second Trump administration seeks a more permanent, more radical, and more dangerous solution. CEQ is trying to repeal in their entirety the regulations that have governed NEPA for over 45 years. Such a repeal would leave individual agencies free to adopt their own, disparate versions of NEPA review, with attendant inconsistencies and uncertainties. In addition, there is little chance that CEQ will call out agencies that take advantage of this new-found discretion to avoid meaningful NEPA compliance.

The Trump administration has also introduced what it calls “alternative NEPA procedures” that ludicrously reduce project timelines, even for major projects, from what would normally require a couple of years to evaluate carefully to as little as two weeks. Such an abbreviated process amounts to not bothering to check out the financial risks before sinking a million dollars into your friend’s investment scheme.

The federal courts: Some of the most alarming erosions of NEPA’s authority are happening in the judiciary. In 2024 a panel of the Court of Appeals for the D.C. Circuit held that CEQ has no authority to issue regulations that bind other federal agencies — even though no party in the case even raised the issue. Although the full D.C. Circuit disavowed that holding, a federal district court in North Dakota subsequently reached the same conclusion.

On May 29 the Supreme Court issued a decision in Seven County Infrastructure Coalition v. Eagle County, sharply cutting the scope of environmental effects, especially indirect effects, that agencies must consider under NEPA. In doing so the Court chastised lower courts for their supposedly excessive interpretations of what NEPA requires of agencies (despite longstanding legal support for such interpretations). It even provided a green light for a court to allow projects to go forward even if that court determines NEPA has been violated. Subsequently, a judge on the Court of Appeals for the D.C. Circuit issued a concurring opinion that blasted NEPA as well as judicial efforts to enforce it, making even Justice Kavanaugh’s critiques in Seven County look mild.

There are two common threads to this surge of NEPA-demonizing actions: the complete absence of evidence that NEPA is the principal culprit for delays in development; and ignorance of and impairment to the core democratizing function of NEPA.