A law designed to protect the environment has been harming Americans for decades. Now it’s time to fix it.
On Billie Joe McAllister Day, the U.S. Supreme Court shockingly issued an 8-0 decision (Justice Gorsuch abstaining) that substantially limits the scope of the 55-year-old National Environmental Policy Act, the nation’s foundational environmental law. The decision dealt a huge blow to rent-seeking attorneys, shakedown artists, “anti-progress” obstructionists, anarchists and socialists, and others now horrified that the federal permitting system has had its wheels greased.
For decades, enemies of construction projects – highways, pipelines, railways – and any other activity using federal funds deemed to have a “significant environmental impact” have slowed or stopped them outright, adding huge costs for document preparation and defense, additional monitoring, activity restrictions, and mitigation and for never-ending public review. Moreover, state and even local NEPA laws and regulations extend their reach far beyond federal projects.
The Court ruling addressed the proposed construction of a railroad to connect oilfields in Utah’s Uinta Basin to the national freight rail network that takes crude to Gulf Coast refineries. Despite approval from the U.S. Surface Transportation Board, the D.C. Court of Appeals ruled that the Board had failed to follow a NEPA requirement to consider the environmental impacts of oil drilling and production and oil refining and distribution in its decision.
In his majority opinion, Justice Brett Kavanaugh wrote that courts are not meant to “micromanage those agency choices so long as they fall within a broad zone of reasonableness.” Heritage Foundation Senior Fellow Mario Loyola echoed the sentiments of many long-time critics of the courts’ interpretations of NEPA by stating that the ruling could dramatically increase the speed of new infrastructure permitting.
Loyola said that the Supreme Court has signaled that lower courts must show substantial deference to an agency’s determination of which environmental matters to incorporate into their NEPA response, which alternatives to study, and how much detail to study. The Court further added that agencies have no obligation to study the environmental effects of projects that are removed in time and space from the project at hand.
The Court’s decision in Seven County Infrastructure Coalition et al. v. Eagle County, Colorado, et al. could significantly reduce the target litigation areas for NEPA reviews. And that, says Legal Insurrection’s Leslie Eastman, will weaken the ability of “federal judges acting as philosopher kings” to halt projects based on “the flimsiest environmental pretexts.” It comes, she added, “at a time when the American economy is gasping for infrastructure upgrades – bridges, pipelines, rail, transmission lines.”
It took 55 years for NEPA to grow beyond recognition into an economy killer. But it was not supposed to be that way.
Nearly six decades ago, Sen. Henry M. (Scoop) Jackson (D, WA) convinced President Richard Nixon to sign the National Environmental Policy Act. There was almost no public demand for – or opposition to –authorizing federal agencies to“create and maintain conditions under which man and nature can exist in productive harmony” (emphasis added) and to “assure for all Americans safe, healthful, productive, esthetically, and culturally pleasing surroundings.”
Little did he know that the act he championed would come back to bite him in the backside. Jackson had built quite a reputation as chairman of the Senate Interior Committee in fostering the Wilderness Act of 1964, the Wild and Scenic Rivers Act of 1968, and the creation of North Cascades and Redwood National Parks and a host of national seashores.
After minimal congressional debate that added teeth demanded by Sen. Ed Muskie (D, ME), Nixon opted to make signing the bill his “first official act in this new decade.” Months later, Sen. Gaylord Nelson (D, WI) ushered in the first Earth Day, and in December 1970, Nixon created the Environmental Protection Agency and charged it with NEPA oversight.
The first evidence that NEPA would have a greater impact than Nixon had believed came with the initial NEPA compliance seminar (which I attended as a DOI employee). Shortly afterward, activists recognized that NEPA provided a powerful tool to halt, delay, or modify projects they considered harmful – for some, that meant ANY project that moved dirt.
Not long after, Sen. Jackson learned that his baby was being used to halt nuclear power plant construction, delay the Alaska pipeline, and impede other projects he favored. Once a green hero, Jackson ended up denouncing “environmental extremists” for failing to recognize the need to balance environmental protection with economic growth – effectively, to ignore the fact that humans are part of the natural environment.
By 1993, the U.S. Office of Science and Technology was questioning NEPA’s value, as NEPA compliance was already costing the U.S. taxpayer about $1 billion a year. OST admitted that NEPA’s success stories were commingled with its “boondoggles,” but concluded the act was cost-effective – at the time.
In 2014, the Government Accountability Office stated that less than 1% were environmental impact statements – those likely to be high-profile, complex, and expensive. Based on Department of Energy data, the median EIS contractor cost (2003-2012) was $1.4 million, while a 2003 CEQ task force reported a typical EIS cost from $250,000 to $2 million.
Then, a 2018 Regulatory Transparency Project report let the hammer down on NEPA’s impact on the U.S. economy. Its lengthy title tells the whole story – A Long and Winding Road: How the National Environmental Policy Act Has Become the Most Expensive and Least Effective Environmental Law in the History of the United States, and How to Fix It.
Author Mark Rutzick noted that “a half century of NEPA implementation has transformed this seemingly innocuous agency reporting duty into the most costly, burdensome, and ineffective environmental law in the history of the United States.” NEPA compliance across every government agency ate up nearly $1 billion in direct federal expenditures annually and required the full-time work of hundreds of thousands of federal employees and contractors.
NEPA, Rutzick added, also requires states, localities, and private citizens who seek federal funds or permits to incur untold massive expenditures to satisfy federal agency NEPA demands. “All this has occurred under an effective cloak of agency silence, with no meaningful oversight or, apparently, even awareness by the Executive Branch or Congress.”
The trouble, said Rutnick, began with President Carter’s 1977 executive order commanding the CEQ to issue regulations prescribing NEPA reporting duties for all federal agencies. The 1978 CEQ regulations were unnecessarily overbroad and unduly complex such that they enabled environmental advocates to file up to 4,000 lawsuits seeking to delay or kill federal projects.
Through these lawsuits, the Ninth U.S. Circuit Court of Appeals produced a massive set of judicial decisions that vastly enlarged “already unreasonable” NEPA reporting duties. Worst of all, judges who reject agency NEPA reports used court injunctions to delay thousands of federal projects indefinitely – often spawning additional rounds of NEPA review, comment, and delay.
NEPA compliance was imposing five year delays or longer and halting thousands of smaller actions for up to two years for projects not even requiring an EIS. Even President Obama’s $900 billion stimulus law could not be implemented until federal agencies completed 192,707 NEPA reviews, including 841 EISs.
The Ninth Circuit added four new factors to NEPA’s standard of judicial review that collectively require a much higher level of compliance than any other federal statute, overturning half a century of Supreme Court instructions to judges to limit their considerations to “relevant factors” to determine only whether there had been a “clear error of judgment.”
Agency decisions must be “fully informed and well-considered,” NEPA requirements must be “strictly interpreted to the fullest extent possible,” and compliance can only be achieved if procedures are “faithfully followed; grudging, pro forma compliance will not do.”
All those phrases BEG for endless litigation, as does another Ninth Circuit wrinkle forcing an agency to prepare an EIS if a plaintiff merely presents “substantial questions whether a project may have a significant effect.”
The Ninth Circuit long held that any violation of NEPA or CEQ regulations meant an automatic injunction. The court also declared that “environmental litigation” is a specialty requiring “distinctive knowledge” to entitle Equal Access to Justice Act fee awards over three times the statutory limit for legal fees (up to $650 per hour).
The Ninth Circuit also created a “NEPA exception” to a federal requirement that a party cannot obtain a preliminary injunction or temporary restraining order without posting a bond to cover potential economic harm to the defendant. They led the way for even the Supreme Court to steadily reduce the evidence necessary to prove environmental injury sufficient to gain legal standing to sue “almost to the point of triviality.”
As this month’s Supreme Court decision is itself limited in scope, Congress and the White House have much more to do to rein in judicial lawfare that has stymied federal projects and made plaintiff attorneys filthy rich while severely weakening the U.S. economy – and incentivizing manufacturers to move offshore.
President Trump’s response to date has included expedited permitting and review for projects falling under national energy emergency purview. But to fully restore NEPA’s original intent – that people can exist (and thrive) in productive harmony with the natural world.
This article was first published by CFACT and is used here by permission.
Featured image created by Perplexity AI.
