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. Not only does NEPA significantly influence federal government actions, but the law has served as a template that has been widely copied, both by state governments (in the form of “
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.
Aug 22, 2022·edited Aug 22, 2022Liked by Brian Potter
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”)."
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.
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.
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”)."
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.