The National Environmental Policy Act (NEPA) is a piece of federal environmental legislation that was passed in 1969 towards the beginning of an “eternal September” of environmental laws, and is often called the “magna carta” of environmental laws because of how influential it has been in shaping environmental policy.
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.
You reminded me of when I worked as a botanist for an Env. Impact company for a short while---a report had been created and approved for a large retention basin in the L.A. area. The basin had been excavated but not quite finished when a funding issue arose, delaying the project for six months. The contractor dug a small ditch through the project to allow runoff while the project was dormant. After six months work was resuming when some inspector said a whole new report was required ---some (non-native) weeds had grown in the temporary ditch in the intervening six months and a couple of them were Federal wetland indicators. I don't know if the inspector had the senses of a rock or was scared of losing his job by not allowing a technicality but the project was again delayed during a frivolous new report and inspection process.
I am a landscape contractor now, mostly residential so Federal policies are usually not a problem but I do get the same kind of nitpicking regulations at times from the city level. Somehow there needs to be a more simplified and reasonable process for all this. That and we need to have the stomach to accept some minor environmental degradation to keep our economy from being so unproductive.
Having practiced in China for several years, I am well aware of the potential dangers of swinging all the way to the other side of that equation, haha.
There *must* exist a middle ground, more cognizant of these trade-offs, between "4 years and $350k of paperwork just to ok a near-identical replacement to a failed culvert" and "we will transform the surrounding landscape until it fits this standard precast bridge design, environmental consequences be damned."
Just to be clear, the latter may actually be the correct trade-off *for China*. The country needs to build physical infrastructure cheaply to advance and in the vast majority of the inhabited parts of the country, there is very little nature left to preserve after two millennia of extremely dense human inhabitation and intensive agriculture. The place had as many people in 1000 as the US did in 1900. With pre-modern agriculture that takes a toll.
For the US, if we're to swallow the elephant lump of replacement work coming down the pipeline from the immediate post-war boom in the NE and Upper Midwest, let alone build anything new, we need to sort this mess out.
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.
At 4% per year of interest for several years, the benefit of the project (which is supposed to be greater, and often substantially greater, than its cost) is going to reduced by 5-25% (or more for the 8+ year delays mentioned above). So if the direct costs of preparing the EISs is typically less than 1% of the project cost, then the indirect cost of the delay will dominate, and accurately estimating the direct cost of EIS preparation is probably not that useful.
Not sure I understood this part, would you mind clarifying?
"This uncertainty also makes changing NEPA somewhat risky. Experts have noted, for instance, that rules to accelerate NEPA processes or impose maximum timelines might result in more of them being challenged in court (by failing to take the proper “hard look”)."
So a really common idea for "fixing" NEPA is to impose a maximum timeline on the time a review can take (often this takes the form of like "any reviews that take longer than xx days are automatically approved). But NEPA law (as determined by the courts, afaict) requires that agencies give a "hard look" to the environmental impacts, and lots of folks think that reviews that get accelerated by maximum timeline laws might end up just getting litigated way more on "hard look" grounds.
I represent oil and gas producers in Osage County, Oklahoma, where the minerals are owned by the Osage Nation (tribe) and managed by the Bureau of Indian Affairs. Several years ago, several attorneys, including the current Republican nominee for Attorney General, hit upon the idea of bringing oil and gas production to a halt by invoking NEPA. Federal lawsuits were filed, claiming that the BIA violated NEPA whenever it approved a lease or issued a permit without an EA. They also sued the lessees, claiming that their leases were invalid and therefore they were trespassing, since the leases were issued without satisfying NEPA. It was an effective strategy, bringing oil and gas production in Oklahoma's largest county to a halt while the lawsuits creeped their way through the federal courts, followed by appeals.
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.
You reminded me of when I worked as a botanist for an Env. Impact company for a short while---a report had been created and approved for a large retention basin in the L.A. area. The basin had been excavated but not quite finished when a funding issue arose, delaying the project for six months. The contractor dug a small ditch through the project to allow runoff while the project was dormant. After six months work was resuming when some inspector said a whole new report was required ---some (non-native) weeds had grown in the temporary ditch in the intervening six months and a couple of them were Federal wetland indicators. I don't know if the inspector had the senses of a rock or was scared of losing his job by not allowing a technicality but the project was again delayed during a frivolous new report and inspection process.
I am a landscape contractor now, mostly residential so Federal policies are usually not a problem but I do get the same kind of nitpicking regulations at times from the city level. Somehow there needs to be a more simplified and reasonable process for all this. That and we need to have the stomach to accept some minor environmental degradation to keep our economy from being so unproductive.
Having practiced in China for several years, I am well aware of the potential dangers of swinging all the way to the other side of that equation, haha.
There *must* exist a middle ground, more cognizant of these trade-offs, between "4 years and $350k of paperwork just to ok a near-identical replacement to a failed culvert" and "we will transform the surrounding landscape until it fits this standard precast bridge design, environmental consequences be damned."
Just to be clear, the latter may actually be the correct trade-off *for China*. The country needs to build physical infrastructure cheaply to advance and in the vast majority of the inhabited parts of the country, there is very little nature left to preserve after two millennia of extremely dense human inhabitation and intensive agriculture. The place had as many people in 1000 as the US did in 1900. With pre-modern agriculture that takes a toll.
For the US, if we're to swallow the elephant lump of replacement work coming down the pipeline from the immediate post-war boom in the NE and Upper Midwest, let alone build anything new, we need to sort this mess out.
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.
Michael Rizzo
NEPA, enemy of the environmentalist.
Like so many regulations, this is about following process. "No-build" is scoffed out of the room before the first public meeting.
At 4% per year of interest for several years, the benefit of the project (which is supposed to be greater, and often substantially greater, than its cost) is going to reduced by 5-25% (or more for the 8+ year delays mentioned above). So if the direct costs of preparing the EISs is typically less than 1% of the project cost, then the indirect cost of the delay will dominate, and accurately estimating the direct cost of EIS preparation is probably not that useful.
Great writeup!
Not sure I understood this part, would you mind clarifying?
"This uncertainty also makes changing NEPA somewhat risky. Experts have noted, for instance, that rules to accelerate NEPA processes or impose maximum timelines might result in more of them being challenged in court (by failing to take the proper “hard look”)."
So a really common idea for "fixing" NEPA is to impose a maximum timeline on the time a review can take (often this takes the form of like "any reviews that take longer than xx days are automatically approved). But NEPA law (as determined by the courts, afaict) requires that agencies give a "hard look" to the environmental impacts, and lots of folks think that reviews that get accelerated by maximum timeline laws might end up just getting litigated way more on "hard look" grounds.
ahh I see thank you!
I represent oil and gas producers in Osage County, Oklahoma, where the minerals are owned by the Osage Nation (tribe) and managed by the Bureau of Indian Affairs. Several years ago, several attorneys, including the current Republican nominee for Attorney General, hit upon the idea of bringing oil and gas production to a halt by invoking NEPA. Federal lawsuits were filed, claiming that the BIA violated NEPA whenever it approved a lease or issued a permit without an EA. They also sued the lessees, claiming that their leases were invalid and therefore they were trespassing, since the leases were issued without satisfying NEPA. It was an effective strategy, bringing oil and gas production in Oklahoma's largest county to a halt while the lawsuits creeped their way through the federal courts, followed by appeals.