NEPA as a Case Study of our Broken Environmental Bureaucracy

The National Environmental Policy Act (NEPA), the cornerstone of our nation’s environmental laws, is the quintessential example of our government’s broken approach to managing environmental concerns. If I could write my grad school thesis over, I would choose NEPA as the subject. Since this is blog post, I’ll try to keep my analysis brief.

NEPA is the environmental law that requires the study of all federal actions to determine their impacts on the environment. The law “declared a national policy for the environment,” and strove to balance environmental concerns against economic considerations. While grand sounding in theory, all NEPA really did was require that information on the environmental impacts of federal actions be made known to agency officials and the public before the action is undertaken. NEPA, to be blunt, is a procedure. It does not guarantee outcomes. It does not guarantee that the environment will be protected. Other laws, like the Clean Air Act and Endangered Species Act, are intended to protect the environment. All that NEPA and its implementing regulations do is ensure that information is gathered, analyzed, and shared before the feds chop the tree, dig the hole, or build the bridge.

NEPA was not even six (6!) pages long when signed into law by President Nixon on the first day of 1970. Today, 42 years later, NEPA is a monstrous paperwork boondoggle, an albatross around the neck of every federal undertaking, a black hole of government initiative, personnel, and funds. A NEPA analysis today can cost millions of dollars, require years to complete, and run several hundred pages in length. Just this week I received an email with new NEPA “direction” that requires more than 50 new elements that must be included in our NEPA studies. This new direction is on top of the hundreds of pages of process “direction” and case law that we already labor under as we attempt to write the impossible – a lawsuit-proof NEPA document.

Humorously, the implementing regulations state that the intent of NEPA is not to “generate paperwork”: NEPA analyses, according to the regulations, are to be “concise” documents that “briefly” discuss significant issues and that are written in “plain language.” Of course, the federal government’s Plain Language Guideline is 112 pages long, so maybe NEPA analyses are not so bad.

Seriously though, how did we get to this point? NEPA wasn’t the best written law; it lacked definitions and explanation. But its intent was clear and I think that the regulations which tell people like me how to write NEPA documents are easy to understand and implement.

What has happened to NEPA is the same thing that has happened, or will happen, to all federal environmental laws (and health care laws and banking regulations and so on): The law (whichever law), while well intentioned, is eventually overtaken by the Iron Triangle of Stupidity. It works like this: First, the law is written by a congress that no longer has the knowledge nor possesses the will to write law that is clear and implementable and addresses the core problem; Second, the ambiguous statute is left to the bureaucracy to interpret and write the regulations under which the law will be implemented; and Third, the law and its regulations become fodder for various special interest groups who make a living off the promises and vagaries of the law.

Let’s see how it has worked with NEPA. In 1969 Congress writes the NEPA statute (becoming law in 1970). In, oh, 1978 the Council on Environmental Quality writes implementing regulations for NEPA.  Bureaucracies haphazardly begin to implement NEPA. The environmental community doesn’t like what it sees and begins to challenge the bureaucracies in courts. The courts begin to side with the environmentalists, writing opinions that at once tell the bureaucrats that they have no idea how to implement NEPA while leaving it up to the bureaucrats to fix the implementation of NEPA. Congress, meanwhile, ignores the whole mess it created.

Today, we have a very active environmental community that makes a living litigating every NEPA analysis written by the bureaucrats, the bureaucrats in turn make a flailing, ugly effort to respond to the increasingly frequent court orders by writing ever lengthier and inclusive NEPA analyses that invariably end up back in court, and congress couldn’t be bothered to understand any of it. The end result is that nothing gets done, we spend immense amounts of time and money following a broken law, and all that our bureaucracies can do is send out really long emails to their staff providing the most recent updated direction on all the crap that we need to pile into our NEPA documents.

I’ll wrap it up now with the kicker: nowhere in this entire process is the public interest considered. Remember that part? The entire purpose of NEPA – to inform the public – has been lost in the Iron Triangle. Federal actions are less transparent than ever when it comes to the environmental impacts that they cause because no member of the public has the time, will, or training needed to read a NEPA study. Let’s be honest; today’s NEPA documents are written for the courts and in anticipation of the coming environmental litigation, with the courts refereeing the perpetual battle between the bureaucrats and the environmental litigants. NEPA has failed. Congress, the ball is in your court.

 

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