Despite all of President Donald Trump’s drama, his administration continues their quest to reduce regulations that will help the country move forward. One of those impediments to development on federal lands has been the National Environmental Policy Act (NEPA). A couple weeks ago the White House released a Memorandum of Understanding (MOU) signed by 12 federal agencies that would build upon Executive Order 13807, and a separate action list issued by the White House Council on Environmental Quality.
Both documents focused on reforming NEPA to promote quicker infrastructure development. For instance, the August executive order established the “One Federal Decision” policy, which says major infrastructure projects should have a single lead federal agency, a single record of decision, and that all authorizations for construction for major infrastructure projects should be completed within 90 days. The executive order defines “major” projects as those “for which multiple authorizations by federal agencies will be required to proceed with construction.”
The MOU further clarified these goals by setting a two-year target timeframe for completing the environmental permitting process and directed agencies to work together to review and make decisions concurrently.
Last Wednesday the House Natural Resources Committee held an oversight hearing to question the effectiveness of NEPA. Committee Chairman Rob Bishop (R-UT) referred to NEPA as “a weaponized tool” used by environmentalists and activists to push developers off permits and languish in the courts.
Every federal land project permit must go through an environmental evaluation, which generally falls into three NEPA categories: categorical exclusion, which most projects receive if there is no significant change to traditional use; environmental assessment for projects that may be more intrusive to the land ecosystem; and the full-on environmental impact study (EIS).
A full-on EIS is done when a developer’s project is likely to have an impact on the land. Only about 1 percent of proposed projects get this far and a full EIS applies to about 200 cases a year.
Hearing panel members disclosed that the EIS portion of project approval can take from one year up to six years. The length of time to complete these studies has been getting longer and longer, frequently turning investors and project managers away from necessary projects.
Rep. Scott Tipton (R-CO) pointed out that one company in his district is going through its ninth year of fulfilling the NEPA process. “As soon as they are about to finish, another lawsuit is filed against them, and then another.”
The federal agencies that are approving these infrastructure projects are getting frustrated as well, which is why 12 of them signed onto the MOU. The agencies have been working on them longer and trying to be more careful so that lawyers don’t send them back as incomplete; they want to produce bulletproof EIS documents.
A new term is popping up in D.C. circles—“lawfare”—which I would define as holding up government processes through frivolous litigation. I’m pleased that the House Committee on Natural Resources has brought the term forward. They have been trying to expose the reckless use of law for quite some time by pointing out the faults of the Equal Access to Justice Act and the consistent petitioning machines of groups like the Center for Biological Diversity and the Western Watersheds Project. These groups and hundreds of others have leaned on the court system with recklessness. There really needs to be a law that deters these folks from filing hundreds of suits and hoping that a couple get traction. They typically sue the agencies for failing to process work on time.
The long dispute over the Oregon bull trout ended this last week and the judge determined that grazing was not the reason for the decline of bull trout populations. The bad part is that it took 15 years to reach this decision. It took a lot of money that the eight ranchers on the Malheur National Forest had to invest. These Endangered Species Act cases are so common that there needs to be special requirements met before one is allowed to file suit. The plaintiff should be required to post a bond to pay for defendant court costs. Environmental litigation is a big problem and NEPA has been weaponized in a reckless way. We’ve got a long way to go to amend NEPA and the House Natural Resources Committee just shot the opening salvo. And remember: We have a narrow window of opportunity to fix some of these laws that will promote rural development when it’s required. — PETE CROW
“Environmental litigation is a big problem and NEPA has been weaponized in a reckless way. We’ve got a long way to go to amend it and the House Natural Resources Committee just shot the opening salvo.”
