Environmental advocates are howling over the Trump administration’s proposed update of rules that govern the National Environmental Policy Act — the first since its implementation in 1978.
The update is long overdue and undoubtedly will be the subject of litigation.
NEPA requires environmental reviews of projects and activities on federal land, including grazing, farming and logging. The reviews evaluate the benefits and impacts of a proposed project and of any alternatives available to achieve the desired goal.
It was meant to promote informed, transparent decision making and to give the public an opportunity to provide input. Over the past 40 years, the reviews have grown too long and too complicated, according to a White House statement.
The new regulations limit Environmental Impact Statements to 300 pages and set a two-year deadline for their completion. Environmental assessments, for projects without a significant environmental impact, must be done in one year.
The new rules clarify that federal agencies must make broad use of state, tribal and local studies and decisions. They also incorporate the interpretations of Supreme Court decisions from relevant NEPA litigation.
When the original rules for review under NEPA were implemented in 1981, regulators estimated that even the most demanding analysis could be completed within 12 months. It turns out that was wildly optimistic.
The Council on Environmental Quality, the agency in charge of making the rules, says today the average time is 4.5 years, and that doesn’t count the years of inevitable litigation challenging the validity of the final product.
CEQ acknowledges that about a quarter of the reviews take less than 2.2 years. A quarter of them take more than six years. Federal Highway Administration projects take an average of seven years.
And with more time comes more volume, much of which adds little meaningful insight.
President Jimmy Carter signed NEPA into law. In 1977 he warned that to be useful documents had to be concise and readable.
“We do not want (EISs) that are measured by the inch or weighed by the pound,” he said.
In 1978 regulators contemplated that a thorough Environmental Impact Statement would take 150 pages. Today the average EIS dresses out at 661 pages, not including appendices. In its backgrounder on the changes, CEQ says that padding is an attempt by agencies to avoid the lawsuits often filed that claim the documents are not complete. By that measure, the extra verbiage nearly always falls short of its mark.
Environmentalists say the new rules are intended to rush questionable projects through the process, denying marginalized communities the opportunity to comment.
We are fans of tight, concise writing. We also have a hard time describing two years as a “rush.”
The original framers of NEPA never intended for the process to produce inertia as the default state of affairs.
If nothing else, the proposed rules bring any project two and a half years closer to the inevitable lawsuit and the slow slog of judicial review.
We will take progress where we find it.