The Case for Abolishing the National Environmental Policy Act
In November 2006, Superior Court Judge Peter Busch upheld a preliminary injunction against the city of San Francisco, preventing them from moving forward with their plan to build new bike lanes and bike infrastructure. Busch ruled that the city hadn’t properly followed the environmental review process mandated by the California Environmental Quality Act, or CEQA. In November 2008, San Francisco was finally finished with the review. All it took was more than 2.5 years, 1,353 pages and more than $1 million in direct costs. This allowed San Francisco the chance at a public hearing in January of the next year, after which the bureaucratic process could either continue or face more delays.
If you think a two-year, million-dollar, 1,000-plus-page environmental report simply to build new bike lanes in an already developed city seems absurd, you’re not alone. Americans are more concerned than ever about addressing climate change, but one of America’s foundational environmental laws is functionally preventing us from doing so. The National Environmental Policy Act—and its state level equivalents such as CEQA—make it far too difficult to take major actions that would help lower carbon emissions. NEPA is a fundamentally broken piece of legislation and should be entirely repealed.
What is NEPA?
NEPA is a 1969 law that requires extensive environmental reviews on federal actions which might “significantly affect” the environment. In practice, its scope is incredibly wide—even 100% private projects can require NEPA reviews simply because they need a federal permit. Virtually every medium-to-large project of any kind, anywhere in the United States, will fall under NEPA’s authority. Many states have also passed state level versions like CEQA which are functionally as strict or stricter than NEPA (we’ll lump the impacts from NEPA and its state level equivalents together for ease of argument).
Despite good intentions, NEPA is one of the primary reasons why it’s so hard to build anything in America. There are three main types of NEPA review—Categorical Exclusions (CEs), Environmental Assessments (EAs), and Environmental Impact Statements (EISs). Environmental Impact Statements are the most stringent category of those three. In 2020, the White House Council on Environmental Quality estimated that the average EIS took 4.5 years to complete and ran more than 660 pages long. This is likely an underestimate as the 4.5 years figure is the time from the “Notice of Intent” filing to the “Record of Decision” ruling, and work typically begins before the Notice of Intent. The American Action Forum estimated an average time of 5.8 years for infrastructure projects to gain NEPA approval. The problem is also getting worse over time, with average NEPA review times estimated to be increasing 39 days per year.
Environmental Impact Statements aren’t even the most harmful process. Environmental Assessments are somewhat less stringent—only taking about 400 pages and two years on average—but there are around 60 times more EAs required every year than EISs, making them at least an order of magnitude more burdensome. NEPA is so poorly implemented that even projects which have been categorically excluded from NEPA review by law (and pre-determined to have no environmental impact) still must go through a Categorical Exclusion NEPA review process. While CEs can be processed quickly, some organizations find that CEs average hundreds of days and 100+ pages. And this for projects which are pre-determined to have no environmental impact.
What NEPA costs us
These delays are harmful in multiple ways. As a first order effect, they cause construction efforts in America to be far more expensive and take far longer than necessary. There are direct costs from the staffing and research required to complete the reports, which are often in the hundreds of thousands or millions of dollars. There are also the indirect costs from having to secure financing over long and uncertain timelines—it’s much harder to get financing, line up vendors and contractors, and organize a plan for your large project when the start date is years in the future (and you can’t even say exactly how many years it might be). As a second order effect, these reviews also drive firms to stop planning new projects entirely. There’s an entire generation of potential housing, infrastructure and energy projects simply not undertaken because the review process is too long and too costly. For projects working on a tight budget or timeline, an EIS is effectively a death sentence.
Perhaps all this burden would be justified if NEPA reviews were guarding against the worst kinds of environmental harm. But the reality is that there’s not much evidence NEPA even does any good for the environment. NEPA is primarily a procedural requirement. As researcher Eli Dourado notes:
Federal agencies can go through the entire process, find that the action under consideration imposes huge environmental harms, and decide to go through with it anyway. The process doesn’t provide any substantive environmental protection … NEPA, then, doesn’t actually privilege environmental protection. Like any procedural requirement, it privileges the status quo. Paperwork must be completed and boxes must be checked.
NEPA prevents us from being able to do much of anything efficiently. The American Recovery and Reinvestment Act was meant to stimulate the economy quickly after the 2008-09 recession. But the projects in ARRA were subject to more than 192,000 NEPA reviews, including more than 7,000 Environmental Assessments and more than 800 EISs. While those reviews were ongoing, projects could not begin and economic stimulus effectively could not take place. The same thing is likely to happen to the bipartisan Infrastructure Investment and Jobs Act signed by President Biden. In just a single year, litigious NIMBYs filed suit against 50,000 proposed new homes in California using CEQA. Sometimes NEPA’s reach borders on absurd—it nearly delayed the University of California from admitting new students and delayed Barack Obama’s presidential library for years. The Niskanen Center has reported how NEPA reviews have stopped the U.S. from updating its electricity grid, often delaying or outright cancelling such efforts despite clear economic and environmental need.
NEPA Is anti-environmental
In fact, NEPA has a long history of delaying explicitly environmental projects. It’s worth belaboring this point at some length to drive home exactly how anti-environment NEPA is. There’s the congestion pricing plan in New York which was delayed by NEPA. There’s the 1353 pages, 2.5 years, $1 million+ review of adding bike lanes in San Francisco. A $3 billion offshore wind project at Martha’s Vineyard was delayed for years due to NEPA. A separate $2.6 billion offshore wind project off Cape Cod was ultimately cancelled after 16 years of legal wrangling. Yet another $3 billion dollar wind project in Wyoming was ultimately approved after 11 years of review process. Hydroelectric dam projects in Oregon have been delayed. A different dam modernization project in Arizona faced a five year delay for review where the executive summary of the EIS is 76 pages long. A reservoir expansion in Denver (despite having the NEPA lawsuit ultimately dismissed) was still delayed by 2.5 years. A lake restoration effort in Utah was delayed 5-7 years. California’s high speed rail plans were delayed in 2017 by CEQA, and then again in 2019 (California ultimately gave up on connecting San Francisco to Los Angeles with high speed rail). Sometimes it’s “environmental” groups themselves who use NEPA as a tool to obstruct environmentally friendly projects. These groups used NEPA to attempt to halt a solar power project in California, to sue a different solar project in Nevada, to stop clean hydropower contracts in Maine, and to stop Minneapolis’s rezoning initiative. The examples are numerous and absurd — the Forest Service’s wildfire prevention projects are delayed an average of 3.5 to 7.2 years due to NEPA. In one instance a wildfire prevention plan was delayed so long that the impacted forest, which wasn’t aware of the importance of bureaucratic process, caught fire and burned 90,000 acres to the ground while the plan to stop said wildfire was still in review. Seattle’s light rail expansion, crucial for fighting climate change, was delayed by an 8,000+ page EIS. The federal government can’t even install solar panels on the roofs of federal buildings without a NEPA review.
Some of the reasoning in these NEPA lawsuits borders on farcical. The Nevada solar project delayed by NEPA was out of concern for the three-corner milkvetch, which to be blunt, is a weed. It is an unremarkable and unimportant weed that grows in the middle of a barren, empty desert. It seems absurd to have to state this, but society must prioritize building out 100% renewable and green energy above the needs of the three-corner milkvetch. If we can’t even muster the political will to build solar in a literal barren desert, the planet will burn from climate change and the milkvetch is doomed anyway.
Just build
NEPA is part of a larger issue with American political culture, which is our inability to build anything fast. In additional to environmental legislation like NEPA, the U.S. has huge issues with NIMBYism and a system of adversarial legalism where nearly anyone can sue to stop anything at any time. Those bringing nuisance lawsuits do so because they know current law gives them incredibly powerful tools to delay, obstruct, and often prevent any new project of any kind from being built.
There’s also a focus on process over results. One of the worst examples comes from Lisa Jacobson, who wrote a column comparing London and Amsterdam’s transit system with America’s. Jacobson concluded that while London and Amsterdam get better results in nearly every way, they need to learn from America’s system because they don’t have enough process for “equity analyses” or “centering excluded groups.” We’ve become so used to the absurdity of the process that we’re now mistaking the process for the outcome.
It’s worth looking back and realizing we used to build much faster. The Empire State Building was built in 410 days. Today, 410 days would likely be about a quarter of the way through their NEPA review. The Golden Gate Bridge, a technological marvel of its time that was viewed as “the bridge that couldn’t be built”, took only about four years to build. A suicide prevention barrier on that same bridge was bid on in 2015, began construction in 2018, and isn’t due to be completed until 2023. Building the entirety of the Golden Gate Bridge with 1930s technology was faster than building a simple guardrail with today’s review process. America is absolutely drowning in process, forms, and reviews.
Abolish NEPA
NEPA’s defenders often try to shift the blame—arguing that the real villain is agency underfunding, or that NEPA’s problems are overhyped because delays can be caused by a number of factors. These justifications fall flat. Agency manpower and underfunding is an issue because agencies must deal with thousand page reports and hundreds of thousands of NEPA reviews. And while it’s completely fair to point out that NEPA is not the only cause of delays, the existence of other secondary problems shouldn’t stop us from fixing the problem in front of us.
Some compiled lists of ‘success stories’ where NEPA prevented great harms. While there are a few examples of NEPA succeeding (you’d expect at least a few big success stories out of the hundreds of thousands of reviews) the list is mostly unimpressive. It’s filled with bureaucratic-speak about how NEPA ‘considered alternatives’, ‘added accommodations’, ‘allowed a diverse coalition to voice concerns’ or ‘initiated a collaborative decision making process’. Clear examples of prevented harm are few and far between, and often would have been covered by separate legislation like the Clean Air Act or the Clean Water Act. Other proponents say we can’t loosen regulations because it will make it easier to build fossil fuel projects. But while it’s true that 15% of the Department of Energy’s reviews are for fossil fuel projects, 42% of their reviews are related to clean energy or conservation. NEPA may actually hit clean energy projects harder, proportionally.
In modern political discourse, ‘abolish’ has come to mean ‘significantly reform’. In this sense of the word, NEPA should absolutely be abolished. It’s a broken process and leads to immense costs for questionable gains. There are a number of smart proposals to reform NEPA, and most would be steps in the right direction. Joe Manchin has asked for a permitting review “side deal” to speed up many aspects of this process as part of the compromise on the Inflation Reduction Act. The Trump administration took small movements toward reducing NEPA’s burden (later walked back by the Biden administration). California is trying to exempt campus housing from CEQA reviews. Congressional candidates like Suraj Patel have advocated for NEPA reforms. If they succeed, these reformers will be doing America a great service.
But there’s also a case for the more literal form of abolishing NEPA. The simple truth is that America would be a better, more environmentally friendly place without it. There’s little evidence it prevents genuine environmental harm that isn’t already protected by other statutes, and an enormous amount of evidence that it harms us in many ways. It harms our economy by making infrastructure slower and more expensive to build. It slows down dynamism and innovation. It harms our cities by making it harder to build dense, walkable urban areas with mass transit. It harms the environment by delaying and preventing clean energy projects.
Tinkering around the edges of NEPA’s immense harms may end up locking us into a system where we debate how many years of delay are appropriate, how many thousands of pages of documents is the appropriate number to write, how many millions should be spent on lawyers and review before any shovel ever hits dirt. Tinkering ignores how badly NEPA’s process is broken. America would be a more prosperous, more dynamic, and even a more climate friendly country without NEPA. Let’s abolish it.
Featured Image is Unfinished concrete building
