President Trump recently announced proposals to update regulations to the keystone statute governing federal environmental analyses. Predictably, radical environmental groups are apoplectic and have begun issuing doomsday predictions about the consequences of his proposal.
The reality, however, is that the changes the Trump administration wants to make to the National Environmental Policy Act would return necessary reasonableness to what has become an overly complex, expensive, and time-consuming process.
NEPA is in desperate need of reform. Currently, the process provides decision-makers with little usable information and instead provides environmentalists easy access to the court system, tying up projects for years — even decades. This causes project costs to skyrocket.
As early as 1997, the Council on Environmental Quality found that environmental analyses had become increasingly complex, expensive, and time-consuming as federal agencies attempted to produce “litigation-proof” documents. But these documents were rarely “litigation-proof,” and so a cottage industry sprang up as purported environmental groups, with the approval of left-leaning courts, created a money-making machine out of their never-ending lawsuits.
These groups sue the federal government, alleging that an environmental analysis failed to consider a litany of environmental concerns, most of which are either not relevant or are actually in the analysis (just not to their satisfaction). Then, in left-leaning courts, where the cards are already stacked against energy or infrastructure projects, environmentalists easily persuade a willing audience that one or more issues need further review. These courts halt the project, send the analysis back to the government for further review, and award the “prevailing” environmental groups with generous attorneys’ fees, fueling an endless cycle of litigation.
It’s no surprise that these groups are so upset about possible NEPA reform. It is a direct threat to their business model. NEPA was never meant to become the economic driver for a small group of litigious environmentalists. Nor was it intended to stop projects in their tracks. Instead, it was designed to inform federal decision-makers of the consequences of their actions.
When established in 1970, NEPA was designed to require the federal government to “stop, look, and listen” before approving projects requiring federal permits. It required agencies not to collect new information but simply to consider existing information. Their analyses were also originally intended to be no longer than 150 pages (300 pages for proposals of “unusual scope or complexity”) and take no longer than one year.
Those days are long gone. Despite virtually unchanged regulations since the 1980s, the NEPA process has metastasized into a regulatory juggernaut bearing little resemblance to Congress’s original intent. A 2019 review found that the average environmental analysis was 669 pages and took more than four years to complete. More than 25% exceeded 729 pages and took six years or more. In fact, it is not uncommon for an analysis to rack up 1,000 pages, take a decade or more to produce, and add millions of dollars to a development project’s total cost.
And that’s before any litigation begins.
The thrust of the Trump administration’s proposed changes is to return NEPA to its original requirements by establishing page and time limits for analyses. It would also limit the consideration required for effects, such as climate change, that simply are too extenuated or uncertain. These are all reasonable measures consistent with Congress’s intent when it enacted NEPA.
But such reforms may not be enough. Until Congress makes sweeping statutory reforms, liberal courts remain free to operate under the status quo that they have created. Indeed, the environmentalists may actually be given a gift by these regulatory changes and may find it easier to persuade their chosen courts that environmental analyses that comply with the reduced page and time limits fail to consider all “relevant” factors.
Ronald W. Opsahl is a Senior Attorney with Mountain States Legal Foundation, specializing in natural resources law, and is a trained wildlife biologist.
