Laws can cut deep into the national consciousness and economy. Last week, calls were made to blunt the blade of one widely-used regulation.
On April 25, the House Natural Resources Committee held a hearing with the foreboding title of “The Weaponization of the National Environmental Policy Act and the Implications of Environmental Lawfare.”
Committee Chair Rob Bishop (R-UT-01) called the National Environmental Policy Act (NEPA) “the weapon of choice” of environmental activists. He cited environmental impact statement (EIS) documents thousands of pages long and assessment processes that take over a decade in his opening statement.
“NEPA was never intended to be a weapon for litigants to force delays and denials on all sorts of activities within the federal nexus, but NEPA as currently implemented provides just that.”
Several participants rejected this heated language, however.
“My Republican colleagues really cranked up the misleading hearing title machine this time,” quipped Rep. Raъl Grijalva (D-AZ-03) in his opening remarks.
“The National Environmental Policy Act is not a weapon; it’s a shield,” he continued, arguing that NEPA protects citizens from “an unthinking government.”
Public Lands Council (PLC) Executive Director Ethan Lane described NEPA as a “self-fulfilling prophecy” of aggressive litigation when talking to WLJ, however.
“The agencies run NEPA to prevent being sued, but by doing so, they provide the best possible avenues for the environmentalist to sue,” he said.
“Because of the way NEPA works, they give environmental groups an endless supply of mistakes and errors and glitches and process problems about which they can litigate.”
Scope of the problem
Both self-styled supporters and reformers of NEPA agreed the process can take a long time and spawn costly litigation. However, they disagreed on how relevant those instances are to the grand scope of NEPA.
Horst Greczmiel, one of the hearing witnesses and a former associate director of NEPA oversight with the Council on Environmental Quality (CEQ), told the committee members that categorical exclusions cover 95 percent of environmental reviews. Environmental assessments—the next most rigorous level of review—make up 4 percent of NEPA reviews.
This leaves only 1 percent of NEPA reviews—about 200 reviews a year—that go to the most strenuous and time-consuming assessment level and require an EIS be produced.
“Just as the number of required EISes is proportionally low in comparison to the number of reviews, in my experience the number of cases filed is proportionately very small,” Greczmiel continued, estimating that roughly 100 NEPA-related lawsuits are filed every year.
“The criticism that NEPA produces wasteful litigation overlooks the essential role that it plays; for many, it is the only mechanism for enforcing NEPA,” he said, noting that agencies “typically” win in litigation nonetheless.
James Coleman, an attorney and one of the hearing witnesses, effectively argued that the time involved with a NEPA lawsuit and the chilling effect that has on other NEPA processes, is worthier of consideration than just how often NEPA lawsuits occur.
“No other country has environmental reviews that average over five years,” he pointed out, citing the average time it takes to complete an EIS (without litigation) quoted by many in the hearing. He characterized this time and the potential for additional years of litigation as economically damaging to the U.S. by discouraging investment in large infrastructure projects.
Bishop’s prepared statements press that theme, saying that “The result [of litigation] provides opportunities for environmental lawfare which perpetuates the cycle by stifling innovation essential to growing our economy.”
Proposed reform
The day before the hearing, PLC released policy proposals aimed at reducing the abuse of NEPA. The proposals included eight items:
- Expand the number and kind of grazing permit renewals that qualify for categorical exclusion;
- Clearly define the roles of impacted parties for the purposes of public comment;
- Enhance the role of state and local governments in the process;
- Clarify the amount and type of data deemed necessary for creating an EIS;
- Revise the NEPA handbook to focus on “purpose and need” for a project;
- Clarify the regulations related to “reasonable alternatives;”
- Weigh socioeconomic impact of a decision equally with ecological impacts; and
- Clarify what actions are subject to NEPA review.
“Our intent here was to sort of boil down our top-level concerns,” Lane told WLJ. “A lot of our focus has been on inappropriate use of NEPA.”
The need to expand the use of categorical exclusion in grazing allotment permit renewals was key. Lane explained that land managers are both not using categorical exclusions to the fullest extent possible as NEPA is currently written, and that the existing text should be reformed to expand its use.
“If you have a permit that’s been in continuous use for 50 years and is meeting or trending towards land health standards and it’s not changing use… there is no reason to run NEPA on that renewal,” he said. “To require a NEPA process is only giving the environmental community an opportunity to sue.”
Lane argued that the public commenting process related to NEPA needs to be reformed as well. The PLC proposal notes that critical stakeholder voices often get drowned out by “thousands or tens of thousands of form or modified form comments submitted by disconnected national or international supporters of activist groups.”
“We need to make sure that the American people have a say on how their federal lands are managed, but we also need to be sensitive to those American people who are impacted by that land management decision because it’s in their backyard,” said Lane. “And that’s simply not how the process is working currently.”
During the hearing, several participants—both witnesses and committee members—offered reform ideas. These included increased funding and training for NEPA personnel, appointment of key leadership positions within CEQ, and stricter timelines on review processes.
Earlier this month, President Donald Trump announced the One Federal Decision Memorandum of Understanding (MOU), which also seeks to streamline the process of NEPA.
Under the proposal, signed by 12 different federal agencies, “major projects” under NEPA would be placed under the primary jurisdiction of one agency, rather than shared across all affected agencies. It would additionally establish timeline requirements for completing environmental reviews for infrastructure projects. — Kerry Halladay, WLJ editor
