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David R.'s avatar

It's worth emphasizing, as you do for roughly the last third of the article, that NEPA's main issue is that the chosen enforcement mechanism is "adversarial legal process". This is just an extension of the rampant rent-seeking/regulatory capture by the wonderful legal practitioner community in the United States. Hell, the ADA is enforced the same way!

If we find the NEPA framework valuable (I'm agnostic trending towards "burn it to the ground" after having watched it take 4 years to do an environmental impact review to place a goddamned box culvert on the site of an existing partially collapsed culvert), most of its worst excesses could be curtailed by making the actual EPA responsible for project determinations and enforcement.

Then, if the so-called "public" comes up with an objection, they can go take it up with the EPA while the project moves forward.

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EC-2021's avatar

So, one thing not mentioned here, which may address some of the questions about declining numbers of coverage is the existence (and I believe expansion in use) of programmatic NEPA efforts. So, a classical one is pesticide application. Instead of doing compliance work on individual efforts, you lump all your future intended pesticide actions together and either do a programmatic CX or a programmatic EA.

More expensive up front, but it usually balances out over time. The main problem with this, beyond up-front cost, is that it usually reduces flexibility. Under the old system, if a new pesticide came out and you wanted to use it on the next project, that didn't really change anything. But now, if you want to, you either need to amend your programmatic coverage (which is generally more expensive than an individual CX, as there's a far wider array of actions/effects/area to cover) or do an individual CX.

Now, the individual CX isn't actually any more expensive than it would have been under the old system (barring inflation/COLA and other cost increases which would have happened either way), but the comparison in your tightened budget is now:

1) Just use the old programmatic and pay basically nothing for compliance.

2) Do a new individual CX and pay that cost.

And so there's a tendency to get stuck in the old way of doing things. This is a narrower example of the status quo bias you mention throughout the piece.

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