It is unclear exactly what the benefits of NEPA are given the manifest other environmental legislation. How about a straight up repeal to solve some problems?
Thank you for your op-ed, and for asking for input. Forgive me for my long-winded response.
The original intent of NEPA and its enabling regs was to provide reasonable assurance of adequate protection of the environment. Today's interpretation of that intent is absolute assurance of perfect protection, a subjective standard that is impossible to meet without subjective input. Look no further than the EPA’s standard for disposal of radioactive waste, where the proposed standards set a maximum dose level for the first 10,000 years, more than twice as long as recorded human history. Those standards REQUIRE the facility to withstand the effects of earthquakes, volcanos, and significantly increased rainfall to contain the waste during a 1-MILLION YEAR PERIOD. Do those terms sound “reasonable,” or are they more towards “perfect protection?”
Legal shenanigans are blamed for NEPA’s failure. I believe this is scapegoating. The fact is that over the years, Congress has shirked its responsibilities to legislate and make difficult decisions; thus, Congress has literally abdicated that role to the agencies. The many new standards we deal with today are little more than legislation written by unelected officials and written in response to technologies and innovations that were not even imagined when NEPA was enacted. This age of buck-passing has resulted in the politization of agency’s upper- and mid-level managers, allowing them to enable a desired agenda and pursue it aggressively WITHOUT THE NEED FOR COMPROMISE with political opponents. This is a critical gaffe - it is through compromise that both majority and minority voices are heard.
The four-year political cycle has also brought with it the chance for sudden change in policy direction and domain, leading to uncertainty in the process. Lately, new presidents have begun their terms by undoing their predecessor’s key actions. Obama undid Bush's recommendation for Yucca Mountain; Trump undid Obama's recommendation to deny Keystone XL, and Biden undid everything he could.
Three fundamental changes are needed. These changes must come from Congress, not the Council on Environmental Quality. The latter office is subject to undue influence from its boss, the President. Congress created NEPA; it should be responsible for restoring its original purpose.
First, agency reviews should be conducted with good faith. While that seems obvious, it is not always the case. For example, it is fair for one agency to reject a project that threatens endangered species and/or their habitat, and for another agency to issue a “take permit” to allow the killing of that species (a common practice in wind projects)? “Take permits” bring to mind the phrase, “a little bit pregnant.” If a major dam can be stopped because of one small snail, a wind turbine should also be stopped because of one bald eagle. Did the government negotiate in good faith with TransCanada’s Keystone XL project, Alaska’s Ambler Road project, or Arizona’s Resolution Mine, or the Twin Metals mine in Minnesota? If so, why were those projects permitted by one president, then canceled by their successor? Does good faith mean, "only in my term of office?
Second, realistic and reasonable time and page limits should be established for agency reviews, including the preparation of environmental documents (CEs, EAs, and EISs). I've worked on EIS projects where the final documents totaled well over 1,000 pages. How can any citizen make sense or apply something that voluminous? In no case should such limit exceed 18 months, regardless of its controversy. Lawfare is far and away the biggest impediment to progress. Breakthrough’s recent paper, Understanding NEPA Litigation: A Systematic Review of Recent NEPA-Related Appellate Court Cases, was a brilliant example of this. But that problem rises from the judicial system and its practices and procedures, not the regulations being litigated. Thus, as a final suggested reform, I believe the judicial process should be amended to require NGOs to file notice of lawsuit within twelve (12) months of the initial filing (or within the first two-thirds of the document’s time limit). This will allow the agency and the proponent to examine the issues raised and determine appropriate steps to minimize or mitigate. Further, in cases where an NGO challenges an agency decision, and that decision is upheld, the NGO should be liable for all costs borne by the defendant (project proponent).
As an aside, I would also suggest agencies revisit their emphasis on “community consent.” Public participation is vital to the proponent’s action and the agency’s review, but it should never be a priority in the decision process. As an example, the federal program for siting a spent fuel repository rests in finding a “host community”. It is absurd that disposal location of mankind's most toxic waste be decided by a “yes-no” election. Such decisions should be made on technical merits, environmental effects (over a reasonable period, not 1,000,000 years as the EPA would have it), and finally a community willing to accept the proponent's offerings to assuage community concerns.
Many practitioners and journalists speak of problems permitting energy projects, to which I agree. But that process could be greatly simplified with a government energy policy that is rooted in the physics of energy production and not in the politician’s desire to pick winners or losers. The global economy is a derivative of energy and energy production. Policies that subsidize diffuse and intermittent energy sources are not, in the long run, sustainable. A policy directive, one that is NOT dependent on the four-year political cycle, would provide all parties a degree of certainty that does not now exist.
Make no mistake - NEPA is in need of rehabilitation. But without these fundamental changes, any regulatory tweaks would be little more than flyshit in the pepper.
My two cents, ma'am, adjusted for inflation. Thank you again for the opportunity and platform (soap-box?)
Net zero what? Carbon? We are Carbon Based life forms so should we off ourselves? First of all we need to get away from Science/Ideology based lunacy and solving problems that only exist in the minds of those who want total control. From Rachel Carlson to Al Gore, it's been falsehoods, one after another and Science Grants have paved the way.
It is unclear exactly what the benefits of NEPA are given the manifest other environmental legislation. How about a straight up repeal to solve some problems?
We all need good information. Thanks.
Pushing water uphill with a colander again.
Thank you for your op-ed, and for asking for input. Forgive me for my long-winded response.
The original intent of NEPA and its enabling regs was to provide reasonable assurance of adequate protection of the environment. Today's interpretation of that intent is absolute assurance of perfect protection, a subjective standard that is impossible to meet without subjective input. Look no further than the EPA’s standard for disposal of radioactive waste, where the proposed standards set a maximum dose level for the first 10,000 years, more than twice as long as recorded human history. Those standards REQUIRE the facility to withstand the effects of earthquakes, volcanos, and significantly increased rainfall to contain the waste during a 1-MILLION YEAR PERIOD. Do those terms sound “reasonable,” or are they more towards “perfect protection?”
Legal shenanigans are blamed for NEPA’s failure. I believe this is scapegoating. The fact is that over the years, Congress has shirked its responsibilities to legislate and make difficult decisions; thus, Congress has literally abdicated that role to the agencies. The many new standards we deal with today are little more than legislation written by unelected officials and written in response to technologies and innovations that were not even imagined when NEPA was enacted. This age of buck-passing has resulted in the politization of agency’s upper- and mid-level managers, allowing them to enable a desired agenda and pursue it aggressively WITHOUT THE NEED FOR COMPROMISE with political opponents. This is a critical gaffe - it is through compromise that both majority and minority voices are heard.
The four-year political cycle has also brought with it the chance for sudden change in policy direction and domain, leading to uncertainty in the process. Lately, new presidents have begun their terms by undoing their predecessor’s key actions. Obama undid Bush's recommendation for Yucca Mountain; Trump undid Obama's recommendation to deny Keystone XL, and Biden undid everything he could.
Three fundamental changes are needed. These changes must come from Congress, not the Council on Environmental Quality. The latter office is subject to undue influence from its boss, the President. Congress created NEPA; it should be responsible for restoring its original purpose.
First, agency reviews should be conducted with good faith. While that seems obvious, it is not always the case. For example, it is fair for one agency to reject a project that threatens endangered species and/or their habitat, and for another agency to issue a “take permit” to allow the killing of that species (a common practice in wind projects)? “Take permits” bring to mind the phrase, “a little bit pregnant.” If a major dam can be stopped because of one small snail, a wind turbine should also be stopped because of one bald eagle. Did the government negotiate in good faith with TransCanada’s Keystone XL project, Alaska’s Ambler Road project, or Arizona’s Resolution Mine, or the Twin Metals mine in Minnesota? If so, why were those projects permitted by one president, then canceled by their successor? Does good faith mean, "only in my term of office?
Second, realistic and reasonable time and page limits should be established for agency reviews, including the preparation of environmental documents (CEs, EAs, and EISs). I've worked on EIS projects where the final documents totaled well over 1,000 pages. How can any citizen make sense or apply something that voluminous? In no case should such limit exceed 18 months, regardless of its controversy. Lawfare is far and away the biggest impediment to progress. Breakthrough’s recent paper, Understanding NEPA Litigation: A Systematic Review of Recent NEPA-Related Appellate Court Cases, was a brilliant example of this. But that problem rises from the judicial system and its practices and procedures, not the regulations being litigated. Thus, as a final suggested reform, I believe the judicial process should be amended to require NGOs to file notice of lawsuit within twelve (12) months of the initial filing (or within the first two-thirds of the document’s time limit). This will allow the agency and the proponent to examine the issues raised and determine appropriate steps to minimize or mitigate. Further, in cases where an NGO challenges an agency decision, and that decision is upheld, the NGO should be liable for all costs borne by the defendant (project proponent).
As an aside, I would also suggest agencies revisit their emphasis on “community consent.” Public participation is vital to the proponent’s action and the agency’s review, but it should never be a priority in the decision process. As an example, the federal program for siting a spent fuel repository rests in finding a “host community”. It is absurd that disposal location of mankind's most toxic waste be decided by a “yes-no” election. Such decisions should be made on technical merits, environmental effects (over a reasonable period, not 1,000,000 years as the EPA would have it), and finally a community willing to accept the proponent's offerings to assuage community concerns.
Many practitioners and journalists speak of problems permitting energy projects, to which I agree. But that process could be greatly simplified with a government energy policy that is rooted in the physics of energy production and not in the politician’s desire to pick winners or losers. The global economy is a derivative of energy and energy production. Policies that subsidize diffuse and intermittent energy sources are not, in the long run, sustainable. A policy directive, one that is NOT dependent on the four-year political cycle, would provide all parties a degree of certainty that does not now exist.
Make no mistake - NEPA is in need of rehabilitation. But without these fundamental changes, any regulatory tweaks would be little more than flyshit in the pepper.
My two cents, ma'am, adjusted for inflation. Thank you again for the opportunity and platform (soap-box?)
Net zero what? Carbon? We are Carbon Based life forms so should we off ourselves? First of all we need to get away from Science/Ideology based lunacy and solving problems that only exist in the minds of those who want total control. From Rachel Carlson to Al Gore, it's been falsehoods, one after another and Science Grants have paved the way.
Over regulation is never good.