Is NEPA Still the Best Model for Environmental Protection? A Case for the NEPC
November 8, 2020 by Drew Robertson
By Samuel X. Frank, Staff Contributor
The CEQ’s new regulations seek to make NEPA more efficient for agencies. Could transforming NEPA into a regulatory commission solve its efficiency problems while protecting, and building upon, its effectiveness?
On July 16, 2020, the White House Council on Environmental Quality (“CEQ”) published a final rule to comprehensively revise regulations under the National Environmental Policy Act (“NEPA”) for the first time since 1978. One stated purpose of this rule is to increase the efficiency of the NEPA process. However, the rule appears to achieve that purpose, in part, by shrinking the scope of NEPA analysis. Among other changes, the new CEQ rule redefines what constitutes a “major” federal action, eliminates the “cumulative impact analysis,” limits the number of alternatives an agency must consider, and sets presumptive page and time limits for NEPA analyses. Is there a better way to address the challenges and burdens of NEPA without sacrificing its scope and, potentially, its effectiveness?
Congress passed NEPA in 1969, instructing governments and agencies at all levels to cooperate with public and private organizations “to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.” By many measures, NEPA has been a success.
NEPA opened government project planning to the public and gave a voice to those directly affected by projects. Its requirement that agencies consider alternative courses of action to proposed projects became one of NEPA’s core strengths in ensuring environmentally sound decision making. Agencies that have embraced NEPA report more efficient and more effective decision making processes. The Bureau of Land Management integrated NEPA’s Environmental Impact Statements (“EISs”) into its land use planning process in 1979 and saved more than $30 million across the first one hundred combined plans. In the early 1990’s, five federal agencies began coordinating their NEPA analyses—this effort decreased the time required for environmental reviews by fifty percent.
Despite its successes, many people view NEPA as a defective program, taking years to comply with and costing millions of dollars. Many of NEPA’s inefficiencies and shortcomings—and there are plenty—begin with the misconception that NEPA analyses are an end in themselves rather than a tool for improved decisionmaking. But treating NEPA documents as a compliance tool causes agencies to begin the NEPA process too late to effectively aid decisionmakers, as well as use NEPA as a generator for “litigation-proof” documents, which wastes millions of dollars and years of time on less effective analyses.
Focusing on the symptom rather than the problem, many agencies seek a more efficient NEPA process by foregoing in-depth EISs for shorter, more preliminary analysis of Environmental Assessments (“EAs”). The CEQ estimates that EISs make up less than one percent of NEPA analyses. Although NEPA’s success relies on engaging with affected parties, many agencies do not publish EAs for public comment. So, as the number of EISs decreases every year and the number of EAs increases, not only is more in-depth scientific analysis sacrificed, but this pattern also decreases public engagement and leads to increased public mistrust, which in turn leads to increased litigation.
Agencies have taken this misguided quest for efficiency even further. When EAs do present “significant” impacts, agencies avoid generating a full EIS—the requisite next step when an EA shows “significant impacts”—by proposing mitigation plans that allow for a new finding of “no impact.” These “mitigated Findings of No Significant Impact (“FONSIs”)” cut at NEPA’s core strengths by minimizing scientific analysis, public involvement, and consideration of alternatives. Even if mitigated FONSIs were an effective method for NEPA analysis, not all agencies actually go on to monitor the implementation or effectiveness of these mitigation plans.
Congress and the Executive Branch have tried to increase NEPA’s efficiency in the past. Like the CEQ’s 2020 final rule, many of these past attempts have involved limiting the scope and applicability of NEPA through tailored procedures and an increased number of exemptions. These measures have often led to greater inefficiencies, though, as disparate policies make interagency coordination and public engagement more difficult.
Could the solution to improving NEPA lie, not in redefining its scope or imposing presumptive limitations but, instead, in reimagining the entire implementation process?
One such solution could be the creation of a National Environmental Policy Commission (“NEPC”) tasked with facilitating and certifying agencies’ NEPA analyses. An NEPC could require agencies to submit project proposals at the beginning of the planning process, facilitate the NEPA analysis process, coordinate with other agencies, invite public engagement, force the consideration of appropriate alternatives, and certify a final environmental analysis document. An NEPC could eliminate inefficiency by focusing agency efforts on the relevant scientific analysis instead of future, potential litigation. The NEPA process could become more efficient for agencies without sacrificing in-depth scientific analysis and without hiding from the more in-depth environmental reviews that an effective NEPA requires.
As the regulatory body for all government NEPA analyses, the NEPC could see the entire field and consider cumulative impacts that are otherwise difficult for an agency to assess. The NEPC could monitor agency projects afterwards to assess the accuracy of the analyses, the actual impact of projects, and the effectiveness of mitigation strategies—three things that few agencies currently do. This data could then improve environmental analyses across the entire government.
The NEPC could also go beyond NEPA and possess binding authority over the selection of alternatives. Agencies could submit statements of intent as part of their initial project proposals. As the NEPC works with an agency to analyze potential alternatives, the commission could have the power to bind the agency to the plan that represents the best environmental policy, while still achieving the agency’s stated goals.
Furthermore, courts hear approximately 100 NEPA-related lawsuits each year. Considering the federal government wins most NEPA challenges, these lawsuits represent an inordinate drain on the resources of all parties involved. Could NEPC oversight minimize the time and costs spent on litigation by fostering a sense of procedural justice and by generating environmental analyses to live up to NEPA’s lofty goals?
Justice Stevens wrote that “NEPA merely prohibits uninformed—rather than unwise—agency action.” Could an NEPC be the solution to an efficient NEPA program? Could the power to regulate NEPA analyses bring to agencies their missing wisdom? Maybe the answer to all of these questions is a resounding “No!”—but at this point, can it hurt to ask?
 40 C.F.R. § 1500-18 (2020); Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg. 43,304, 43,304 (July 16, 2020); see also Kevin A. Ewing, Ann D. Navaro, Christine G. Wyman & Kevin M. Voelkel, Trump Administration Publishes Final Revisions to NEPA Regulations, Nat’l L. Rev. (July 16, 2020), https://perma.cc/CCj2-5KXV.
 See Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, supra note 1; see Ewing et al., supra note 1.
 See Ewing et al., supra note 1.
 For a summary and discussion of the new CEQ regulations, see id.
 See National Environmental Policy Act, 42 U.S.C. § 4331(a) (2018).
 Council on Env’t Quality, The National Environmental Policy Act: A Study of Its Effectiveness After Twenty-five Years iii (1997).
 See id. at 17.
 Id. at 20.
 Id. at 12.
 Id. at 14.
 See id. at 22.
 Richard A. Epstein, The Many Sins of NEPA, 6 Tex. A&M L. Rev. 1, 1 (2018).
 See Council on Env’t Quality, supra note 6, at iii.
 See id. at iii, 7.
 Id. at 19.
 See U.S. Gov’t Accountability Off., GAO-14-369, National Environmental Policy Act: Little Information Exists on NEPA Analyses 7 (2014).
 See Council on Env’t Quality, supra note 6, at x, 19.
 See id. at 19.
 See id.
 See id. at 20.
 See Helen Leanne Serassio, Legislative and Executive Efforts to Modernize NEPA and Create Efficiencies in Environmental Review, 45 Tex. Env’t L.J. 317, 321, 327 (2015).
 See Ewing et al., supra note 1; Serassio, supra note 22, at 321, 327.
 See Serassio, supra note 22, at 321–22.
 See Council on Env’t Quality, supra note 6, at 29.
 See id. at 31.
 See U.S. Gov’t Accountability Off., supra note 16, at 19.
 See id. at 20.
 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989).