Last week the House Committee on Natural Resources held a hearing on the “weaponization” of the National Environmental Policy Act (NEPA) and the “lawfare” surrounding it. There were key points made from both trenches. There were muted calls for bi-partisan solutions. But there are few signs that much is going to change. Here are some thoughts on why and what really stands in the way of making NEPA a fuller, better version of itself.
Too Long, Too Litigious, Too Costly?
Law professor James Coleman was the principal source of NEPA horror stories and how the amorphous category of “environmental reviews” has, blob-like, grown far beyond the original remit to become the principal deterrent to private investment in American infrastructure. We’ve covered this meme at the NEPA Lab many times over. With anecdotal evidence and inattention to the facts of each case, an oversight committee majority can surely convince themselves that NEPA reviews on average have become too detailed, too costly, and too litigious. A letter to the record by 120+ law professors explaining why these averages are deceiving is a good antiseptic on that, as well. {See Law Professor Letter House NEPA Hearing Final 4-24-18}
Coleman is surely right that NEPA reviews have grown increasingly technical, increasingly contentious, and now routinely reach points of diminishing returns. This is the environmental impact statement (EIS) of today where thousands of pages of technically defensible but practically useless projections do nothing except “gold plate” what reasonable people were already alert to—if not to such painstaking degrees of detail. In the process, average people are fenced out and real issues are obscured.
Long-time NEPA pro Horst Greczmiel’s answers were equally potent: These reviews have taken longer as less and less has been budgeted to them. NEPA typically serves as an umbrella for other, more specific environmental laws that keep us from making the mistakes we made in the century preceding modern environmental law. If reviews go as they should, they gather information that changes minds—and project plans, mitigation plans, alternatives, etc. Finally, any private money involved will surely change course, too, as priorities and coalitions change or evolve. That’s no “fault” of NEPA’s.
Finally, as this report from the Government Accountability Office (GAO) found in 2014, actual litigation of NEPA documents is still declining after having peaked decades ago. More of it has centered on the “abbreviated” NEPA documents like environmental assessments (EAs) and categorical exclusions (CATXs) but that’s because so much more of NEPA practice today is about these types of reviews rather than EISs.
NEPA task forces in the Bush and Obama eras pushed an agenda of streamlining, technological advance, and the anticipation of issues before they become delays. Today, the resulting status quo is this: we have substantive problems to confront collaboratively if we want both environmental quality and continued development—problems that aren’t going to be resolved through more trench warfare. Without a meeting in ‘no man’s land,’ there will be no peace.
Problem # 1: Cumulative Impacts Ignored or Buried
One key problem in NEPA today takes us back to its origins and the hopes for a real ‘national policy’ reconciling our goals of environmental quality and economic prosperity: deaths by a thousand cuts are still deaths. When environmental groups coalesce against a pipeline project today, they are doing so because further fossil fuel development that ignores the accumulated legacy costs is simply unfair to future Americans (let alone the average Pacific Islander). It is an injustice, pure and simple. But it is both a national and a local injustice and that compound context complicates any analysis immensely.
Opposing the Dakota Access Pipeline’s crossing the Missouri River directly upstream of the Sioux Indian Nation’s water intakes was justified both because it was an affront to the Standing Rock people and as a symbolic gesture against still more generations of Americans made to depend on ‘cheap’ fossil fuels. One discussion isn’t unrelated to the other, but where one’s priorities lie will surely affect what alternatives are worth weighing, the lengths to which one is willing to go in opposition, and who to call the enemy.
If one reads the 1968 report to the Senate Committee on Interior and Insular Affairs in which Senator Henry “Scoop” Jackson, Keith Caldwell, and some allies laid out the vision that would become NEPA §§ 101-102, one unavoidable conclusion is that humanity’s cumulative impact on Earth’s diversity of life and seemingly miraculous cycles had grown daunting to everyone. And if NEPA is the only venue where that colossally-scaled balance can be litigated, it’s where concerned people will litigate it.
Path Forward # 1: NEPA’s substantive vision is protective, broadly scaled, and in reality quite sensitive to the issues that now dominate in balancing environmental quality with present-day prosperity. It’s not the vision that must change but how it’s been institutionalized. More NEPA processes that dig deeply on cumulative impacts from a common technology or practice, i.e., oil and gas development, should be conducted independent of particular time/place/manner analyses which, rightly scaled, should focus on impacts and risks confined to a finite locale. For, if done right, these bigger-picture analyses can be the bases from which smaller, more confined analyses are “tiered” for years at a time. Typically, our knowledge of “cumulative” debts like those in greenhouse gas pollution doesn’t change month-to-month. Of course, our priorities on such things can change quickly, but that’s about choices – not information. This article on moving the broader questions to analyses structured departmentally by NEPA § 102(2)(E) instead of NEPA § 102(2)(C) suggests several steps forward along this front.
Problem # 2: Arbitrariness Review is a Jungle
Everybody complains about the bullet-proofing of EISs—and of any NEPA document expected to be litigated. This is a real dilemma. But it stems as much or more from judicial practice and what counts for doctrine on the arbitrariness reviews federal courts conduct pursuant to the Administrative Procedure Act (APA) as anything else. APA arbitrariness review is famously hung-up on what role a change in priorities precipitated by a change in political parties ought to have on administrative agency analytics. From State Farm and Baltimore Gas to FCC v. Fox Television Stations, the Supreme Court has been unable to settle on any formula or algorithm for judicial review of exercises of judgment.
It is easy to say that politics should have no place in environmental analysis; it is much harder to give a convincing explanation why. As this article explains at length, how we understand environmental risk and our roles in it are both affected by our priorities and how NEPA is used to settle them. Expecting federal courts to work out when and why that dynamic has somehow perverted some administrative process is an express lane to randomness in judging, especially in NEPA routines and documents. And that randomness has had substantial deleterious consequences in NEPA administration.
Path Forward # 2: It is unlikely that Congress or an administrative agency can do much to tame the jungle of arbitrariness reviews. The more SCOTUS has said about its arbitrariness doctrines, the more divergent lower courts’ approaches have grown. In theory, Congress could amend NEPA with a detailed and prescriptive citizen suit provision, specifying when and where jurisdiction to hear NEPA suits should lie. This would only even possibly improve the status quo if the provision precluded other venues and causes of action, though, and that seems unlikely to garner a supermajority in the Senate. It is also probably quite unwise.
One path forward, long discussed but never yet implemented, would be the fuller specification of NEPA’s alternatives mechanism. This could involve clarifying the point of comparing alternatives, their relationship to any underlying risks afoot, and the means by which better alternatives are found. Much of the worst ‘analysis paralysis’ in NEPA, both in small and large NEPA documents, stems from the vagueness of the choice problem itself. Agencies must choose some range of “reasonable” alternatives to their proposal for study and consideration. But that can often hang up on what is a means and what is an end. It is here that the judiciary’s sense of reasonableness is hardest to anticipate and here that agencies—and perhaps a rebooted CEQ—could focus real efforts to track and solidify NEPA practices with rules. And the right rules could, in turn, alleviate analysis paralysis.
In the hearing last week, several members—most especially Rep. Tom McClintock (R, CA 4th)—commented on NEPA’s role in keeping the Forest Service from thinning fire-prone forests, thereby worsening our public lands’ wildfire crises. This is not the place to litigate that cause-to-effect hypothesis (although, as other have noted, it is of questionable merit). Whatever validity it possesses comes down to alternatives selection. Assuming fuels are overrunning places like the Sierra Nevada, what can the Service realistically do about them? Some, like Rep. McClintock, are quick to prescribe fuel “removals” through logging, mechanical thinning, and the like. But the Service itself has proven it hasn’t the money, time, staff, or willpower to keep up with fuels along that path. We would have to repeal all of its legislation—governing the whole National Forest System—to free the agency to be that unencumbered and enabled. Because that’ll never happen (and shouldn’t), the agency should develop and weigh some completely different alternatives like, for example, decommissioning the roads allowing so much back country access and the human ignitions it entails which, in turn, double or even triple the fire seasons in our national forests.
What to generalize from examples like this? Better alternatives often come from minds other than those proposing discrete actions. And they are often alternatives that must be developed or implemented at different scales from those where the proposal first emerged. If we want alternatives analyses that make more sense—choices it makes sense to study and make inter- or extra-bureaucratically—agencies should facilitate the broadest possible surveying of potential solutions to the major environmental challenges they face. Wildfire has become an inter-agency, inter-state, inter-generational nightmare. Fuel reductions acres at a time is below the dignity of the United States Forest Service. But this kind of management should formulate agency objectives—not follow it. That was the teaching of the first courts to grapple with this issue of NEPA’s in cases like Calvert Cliffs and NRDC v. Morton.
Problem # 3: Piecemeal Efforts to Solve Big Problems
The third but not least (or last) big problem is the legacy of piecemeal efforts to fix the big problems by the uncoordinated institutions ‘administering’ NEPA — no one of which has the scale or scope to do so effectively. This article explains the path-dependent, deeply entrenched diseases which are arguably unique to our national environmental charter and its unconventional DNA.
As NEPA’s uncoordinated administrators have worked to impute their own small correctives, others have reacted in turn. The net result has been further disfigurement of an already warped system. Sadly, a congressional fix here is a longshot among longshots.
For example, as more critics have decried the supposedly overactive environmental plaintiffs’ bar, the courts (especially SCOTUS) have tried to use their inherent remedial powers to discourage supposedly vexatious NEPA litigation. The Court’s two most recent NEPA cases, NRDC v. Winter (2008) and Monsanto v. Geertson Seed Farms (2010), have both rearranged the availability of equitable relief. It is fair to say both were attempts to make injunctions rarer, whether it be a preliminary injunction (Winter) while the challenge is pending or a permanent injunction (Monsanto) after a NEPA violation is proven. This may or may not be an appropriate use of the courts’ powers but it has done nothing to solve the problem to which they were ostensibly addressed. Plaintiffs’ tactical adaptations have kept agencies guessing and kept federal courts sorting through NEPA minutiae year-over-year.
Another example we tracked here at The NEPA Lab for years was the now-defunct attempt by the Council on Environmental Quality (CEQ) to finalize a uniform “guidance” document on the weighing of climate change risks in NEPA. Without the authority to impose legal interpretations, the expertise to offer needed information others lacked, or governing case law interpreting NEPA to some coherent effect, an under-staffed, anemic CEQ was bound to fail.
A Bottom Line?
The last time the House Natural Resources Committee took steps like this was in 2006 with recommendations that went nowhere. They were, for lack of a better term, ham-handed. They aimed to codify page limits on EISs, to authorize agencies to reject the comments of those they deemed interlopers, to encourage agencies to ignore cumulative impacts, and to set mandatory timelines for all NEPA routines (among other things). Rigidities like that are no solution but the underlying problems remain real.
Our hyper-partisan times may not abet that meeting in no man’s land. For a bi-partisan coalition in the House—let alone a filibuster-proof majority in the Senate—to take any of this on may simply be a bridge too far. Members have more to fear from the extremists to their right or left than from each other lately. Compromise is a four-letter word. But if it’s not impossible, a NEPA fix like that sketched above — an actual confrontation of the underlying substantive problems — could go a ways toward reconciling two things America has long stood for: economic prosperity and environmental protection.
{Image: old clock by Illymarry/Wikimedia}