Conservatives cherish their natural environment and believe in responsible management of our country’s resources. They also believe in pursuing clean energy development through ambitious projects that create jobs and grow the economy. Reasonable regulations and oversight are warranted in many cases, but increasingly, a long-standing and antiquated federal policy has delayed many of them. With the COVID-19 pandemic stalling even more projects, many in clean energy industries are calling for regulatory reforms.
At the center of this debate is the National Environmental Protection Act (NEPA), which was first introduced in 1970 and has seen few updates since. NEPA mandates federal agencies to consider the environmental impact of proposed projects and provide notice to the public for comments. Over the years, NEPA has often had a positive impact; but in recent decades, it has been abused and could slow our transition to clean energy.
The environmental review process as it stands is cumbersome and unpredictable. In the midst of this economic crisis, delays in infrastructure projects are even more challenging for Americans looking for job opportunities and better wages. A reformed review process would offer certainty in the applicability of NEPA and eliminate burdensome delays.
Currently, there is a backlog of infrastructure projects that cost Americans thousands of tax dollars. The average time it takes an agency to complete an Environmental Impact Statement (EIS) is four and a half years. Highway projects take an average of seven years. Even when an EIS is complete, the project can still be subject to legal challenges and face roadblocks in the court system. There is more litigation surrounding NEPA than any other environmental statute.
When a project is stuck in a lengthy review process, the country may still be exposed to environmental risks. This cuts against the very purpose of NEPA: to determine potential environmental risks in order to make an informed decision about a particular project. This scope of review takes into account the limited time and resources of any given agency.
In an effort to streamline the review process, President Trump announced the One Federal Decision policy as part of his 2017 Executive Order (EO) 13807. Making American infrastructure more efficient strengthens the economy and creates job opportunities. Moving forward with infrastructure projects also maintains America’s competitiveness and reduces the cost of goods and services for consumers. These conservative values are the bedrock of the One Federal Decision policy.
The One Federal Decision policy is comprised of four elements. First, it establishes a two-year goal for agencies to complete environmental review and authorization processes. Second, lead agencies will create a Permitting Timetable schedule with specific deadlines for the process. Third, agencies will develop one collective Environmental Impact Statement (EIS) and Record of Decision (ROD). Finally, the lead state agency will develop a resolution process for situations where a deadline is missed or extended.
However, the One Federal Decision policy exists only as an Executive Order. This means reforms to modernize the review process are subject to reversal with a new administration. It is critical for Congress to truly modernize NEPA and incorporate the purposes and policies of the One Federal Decision policy into law.
At the beginning of 2020, the Council on Environmental Quality (CEQ) announced a proposed rule that mirrors the One Federal Decision policy. The proposed rule will ultimately make the environmental review process more efficient. If adopted, the proposed rule would reduce the number and types of projects subject to NEPA, shorten the review period, and eliminate a cumulative effects assessment. The NEPA reforms take into account advances in environmental risk management that could reduce a project’s environmental impact.
The status quo for infrastructure investments is cumbersome and problematic. To tackle climate change, we need direct forms of action and clean energy infrastructure—infrastructure that is often delayed under existing NEPA procedures.
There is a presumption that a violation of NEPA is enough for injunctive relief to half an existing project. Additionally, NEPA requires a cumulative effects assessment which asks an agency to consider the effects of a project on the climate. However, NEPA is not solely responsible for climate change policy.
Under the proposed rule, injunctive relief is only applicable to projects where there is actual evidence of irreparable harm or immediate dangers. Projects that have agency approval can move forward, instead of being caught up in more bureaucratic red tape. The proposed rule also limits the cumulative effects assessment to effects that are reasonably foreseeable, not the result of a long casual chain.
The proposed rule will make infrastructure investments possible, especially at a time when we are working to rebuild our economy and communities. When projects are tied up in NEPA review or court challenges, Americans pay for existing infrastructure without being able to enjoy the benefits of improved roads, highways, or bridges.
The need for modernizing NEPA has existed long before the current economic crisis. However, the emergency orders in response to COVID-19 have created uncertainty about how agencies should proceed under NEPA.
Specifically, the June 4th Executive Order allows federal agencies to bypass NEPA entirely – although these projects could be subject to legal challenges down the road. With this kind of uncertainty, most companies will likely follow NEPA procedures regardless. A final, modern NEPA rule is necessary to provide certainty and predictability, and help America move continue to grow. Read CRES’s official statement following the President’s order.
Congress has previously approved legislation that exempts actions from NEPA review, accelerates environmental review, and improves collaboration and transparency among agencies. Congress can and should continue to modernize and clarify the NEPA review process. We implore Congress to take action to approve the proposed rule as law and open the door for more infrastructure investments.