This essay by Ezra Klein in the NY Times is worth a look. (I hope this Share link works — the Times says that, as a subscriber, I can send links to 10 articles per month, and anyone can read the linked articles).
In “Government Is Flailing, in Part Because Liberals Hobbled It,” Klein suggests that NEPA and other environmental laws, are necessary and have been successful, but now make it too easy to block needed projects.
Zoom out from the specifics, though, and look at what it reveals about how government, even in the bluest of blue communities, actually works. Why was it so easy for a few local homeowners to block U.C. Berkeley’s plans, over the opposition of not just the powerful U.C. system but also the mayor of Berkeley and the governor of California? The answer, in this case, was the California Environmental Quality Act — a bill proposed by environmentalists and signed into law in 1970 by Gov. Ronald Reagan that demands rigorous environmental impact reviews for public projects, and that has become an all-purpose weapon for anyone who wants to stymie a new public project or one that requires public approval.
There are laws like this in many states, and there’s a federal version, too — the National Environmental Policy Act. They’re part of a broader set of checks on development that have done a lot of good over the years but are doing a lot of harm now. When they were first designed, these bills were radical reforms to an intolerable status quo. Now they are, too often, powerful allies of an intolerable status quo, rendering government plodding and ineffectual and making it almost impossible to build green infrastructure at the speed we need.
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…environmental victories of yesteryear have become the obstacles of this year. Too many of the tactics and strategies and statutes are designed to stop transformational, or even incremental, projects from happening. Modest expansions to affordable housing or bus service are forced to answer for their environmental impact. But the status quo doesn’t have to win any lawsuits or fill out any forms to persist.”
So here’s the problem in my view.. heretofore we could help the environment by regulating and not doing things.. so a legal framework were developed to stop things that some groups didn’t like. And all was well, until the same actors (with “good” environmental intentions) wanted to do.. things.. mine lithium, build wind farms, build new rail and bus systems, densify development. If you notice, the ENGOs that are pro these things, are implicitly assuming that activities that are “good for climate” should get a (relative) pass compared to other activities.
The tools in the ENGO toolkit do not fit “doing good things” as well as “keeping other people from doing bad things.”
I have to give CBD much credit here, although I’m not a fan of many of their positions, at least they seem to be consistent in their approach to development that impinges upon various critters.
NEPA seems to doing exactly what it was designed to do: paralyze the government, hinder technological progress, and prevent any kind of development with any conceivable environmental impacts, all other policy considerations and benefits to the American people notwithstanding. In the public lands management sphere, it has successfully established a one-way ratchet toward ever greater restrictions on use of public lands and public access to those lands, gradually transitioning from multiple use to Wilderness as the single allowable use. In sum, NEPA (along with the ESA and other companion laws) made all other considerations of governance and public policy subordinate to a strictly preservationist view of environmental protection, and we are now paying the price for that folly.
Patrick, I don’t think it was designed to do those things..
It was intended to make the government look before it leaps, environmentally.
Now in the ensuing 50 years, litigation on ESA (perhaps more than) NEPA and NFMA have been used to delay and stop actions.as a policy choice by ENGO’s to obtain desired policy outcomes. While mainstream groups may now want to switch horses to encouraging projects like renewable energy and so on, other groups continue to hold the reins of “saying no”. And yet there is a political calculus involved.. if it becomes too obvious (all activities are litigated) the entities desiring the actions will bring political pressure to bear to change the playing field. Should be interesting to watch.
The AP reported this today:
SACRAMENTO, Calif. (AP) — The California Legislature voted unanimously Monday to overturn a recent court ruling that would have forced one of the nation’s most prestigious universities to turn away thousands of students from its incoming freshman class.
If signed into law by Gov. Gavin Newsom, the bill will ensure that about 2,600 freshmen admissions slots for this that had been eliminated by a judge will be restored for the University of California, Berkeley.
Just two weeks ago, the state Supreme Court ordered the school — one of nation’s the top public universities — to reduce its enrollment because it said the college had failed to comply with a state law that requires them to consider how adding more students would affect the environment.
While the state law in question is designed to protect the environment, it has often been used by neighborhood groups to block unwanted development.
In this case, the nonprofit group Save Berkeley’s Neighborhoods had sued the university, arguing that adding more students would only worsen the housing shortage and increase rents for everyone in the San Francisco Bay Area city.
The court agreed with the neighborhood group and ordered the university to stop construction of more housing and classroom space and to keep its enrollment at the same level as the 2020-21 school year.
Rather than let the ruling stand, the California Legislature voted to change the law. The bill approved by lawmakers gives universities more time to comply with the law before judges can order them to reduce enrollment. The bill would apply retroactively, meaning it would reverse the prior ruling capping Berkeley’s enrollment.
More at http://www.ccenterdispatch.com/news/national/article_533eede1-0255-5f6f-bcbb-d95b4e13ec89.html
That’s a good example regarding CEQA, but I don’t think it’s common at all for NEPA to affect housing development, and I thought the podcast by Klein was rather sloppy and inaccurate in making that connection. Transportation and NEPA are another story, of course.
Josh, you’re right about the differences between NEPA and CEQA, but the principle outlines in the several articles about the UC Berkeley case is similar: a minority effectively has a veto on projects that they oppose. I’d like to see much more weight given to collaboratives that work to hammer out USFS projects, and less to ENGOs who may or may not have taken part in the collaborative process.
As a Californian, I can say this rings true 100%. It why we must be skeptical about my home state’s promises on climate change and forest management: the system is rigged against action by those who view inaction as the greatest sign of virtue. However, As a libertarian I can see the bright side of a government which has hobbled itself voluntarily.
I agree with Sharon’s comment about NEPA laws being about thinking ahead, which slows government actions, and may stop them by daylighting unacceptable consequences or raising the hassle bar too high. NEPA includes exceptions for emergencies, but rarely are there circumstances that require doing something immediately instead of taking the year or two of focused process to comply with NEPA.
I don’t like to see such laws abused as a NIMBY tool, but I question Steve’s assertion that it is necessarily a “minority” that invokes them. Often the challenges come from truly “public” interest groups; if the public were polled they might be a majority. And delaying something is not a “veto.”
I’m not familiar with the nuances of CEQA, but I’m pretty sure NEPA would not require anything if there is no physical adverse impact on the environment (like admitting more students). It was not designed to address effects such as “worsen the housing shortage and increase rents” unless that was the result of some physical adverse impact. NEPA has sometimes been abused this way, but courts tend to throw out at least the most obvious cases.
Here is an example of NEPA gone wild:
https://www.coloradoan.com/story/news/2022/03/30/colorado-wolf-reintroduction-deadline-jeopardy-after-court-ruling/7203591001/
that ties back to some earlier discussions of Colorado wolf reintroduction here: https://forestpolicypub.com/2021/11/08/conservation-groups-unite-to-protect-threatened-species-in-colorado/
While there is undoubtably an effect on the physical environment of reintroducing wolves, is it adverse? The fact that it might adversely affect someone’s social or economic concerns is not by itself a trigger for NEPA. And even if we concede that it might adversely affect some other wildlife species, isn’t it just mitigation of the unnatural effects of previously eliminating a native species? And even if some NEPA analysis of adverse effects is required, it would only be talking about the effects of wolves happening sooner than natural recolonization (the no-action alternative). NEPA should not be a major obstacle to wolf reintroduction.
NEPA also applies to actions with beneficial effects. C.F.R. § 1508.27(b)(1) (1978).
Just sayin’ 😉
So the old balance of harms analysis might actually be balance of harms and benefits?
Yes, what a concept, eh? 🙂
Indeed. But is this concept actually applied to national forest NEPA analysis? And do courts recognize it? If they did, litigators would rarely succeed.
No, the agency doesn’t approach its work this way currently. I’ve long argued that the Forest Service should do more EISs for forest restoration (particularly wildfire resilience work) on the basis that the intention IS to have a major impact: a majorly GOOD one. Many forests are highly departed from resilient conditions, so it is going to take a lot to restore them. Rather than trying to avoid significance or significant impact, the USFS should be more candid about what it is doing and why.
As far as I know, the issue has never been framed by the USFS this way, so the courts have never addressed it. I also can’t get anyone in the agency to try it.
The core point made is reasonable (beneficial effects as a range of effects to be discussed), but there’s a few snags on the way to that, and some questions generated that I think are interesting!
One: while courts have at least at times addressed the question of beneficial impacts in NEPA, it’s undeniable that impacts have primarily been construed as negative things to be avoided. So when an agency claims significant, albeit beneficial effects, it’s counterintuitive. Smaller hurdle, but a hurdle all the same.
Two: Quantitative research on NEPA generally shows EISs as massively more time consuming and litigated that other types of NEPA analysis. Obviously some of this is a selection-bias issue, if more EISs were done for significant beneficial effects perhaps the EIS pathway would not generate such stats. Don’t know myself. But why this matters is to ask, what incentives are there to go through the daunting hoops set up by the EIS process?
Three, and related: would the current “three-tiered” NEPA universe benefit from a more two tiered approach? Leaving aside the body of case law dealing with the significance question at the moment, it doesn’t take much reflection to see that the significance / non-significance discussion generates a lot more smoke than fire, so to speak. To what extent does divvying out significant and non significant effects actually help meet the twin aims of NEPA, instead of obscuring them?
A lot of this ties back to the structural incentives for the agencies, meaning which pathways present more or less obstacles, that massively dis-incentivize this kind of approach. Maybe I’m hewing a bit close to older rational actor theories of agency behavior, but i don’t think an agency or any other actor can be expected to voluntarily choose a more difficult path with limited resources.
And contra some, I don’t think people in agencies view production of NEPA analyses as an ‘actual’ work product. No agency is charged with environmental analysis as part of their core mission, the multiple uses of the FS don’t include production of impact analysis, which is a bit of a canard I know, but the point is budgets, targets, etc are much more based on things that happen on the land base that is managed, not on the steps that get to it. It’s a necessary but not sufficient condition for accomplishing ‘actual’ work.
Maybe that’s wrongheaded, but I have yet to see a sustained argument that the production of NEPA analyses is itself part of the mission of the agency as opposed to an adjunct to it. I’ve seen the argument here that NEPA analyses should be construed as a knowledge-production accomplishment but I think this might smuggle in a preferred conclusion, that is by ignoring the costs and assuming that all public engagement is in good faith, instead of an exercise in legal positioning to block or defend actions that benefit a group’s mission (environ. and extractive alike).
I would, given more time, probably want to mount an argument that the EA / EIS, Significant / Nonsignificant distinction enshrined in NEPA right now is an unhelpful distinction that does more to generate procedural problems and definition warfare than it does frank disclosure of plans of work, impacts of those plans, and potential modifications open to those plans to curtail some impacts or enhance others. Personally, I’m inclined to think that significant procedural reform to NEPA would be required before any one agency can be expected to pursue that kind of approach. (think more rearrangement in the vein above, less page and time limits). But any change to NEPA is often reacted to as an attack on the entire concept of environmental law and litigated as such.
This is in part how I have always felt. NEPA, and state equivalencies, have always in the end come across as:
1) “I want to push through this awful project, and with enough money and analysis I can push it through legally”
2) “I have a great project, that a radical small minority dislikes, and for the next 10-15 years I will be held up each time they find the “gotcha!” moment” (see low income/affordable housing projects, often)
3) A financial expenditure on projects that no one comments on, cares about, or takes issue with.
It was a great moment when Nixon signed NEPA into law in 1970. However, the world/nation is not 1970 anymore, but 2022, 50+ years later. A lot has changed, including the financial interests in project proponents AND their ability to analyze and use emerging technology and knowledge to mitigate, IN ADDITION to the non-profit litigation industrial complex’s ability to find fault anywhere (in the name of…gasp…money…wait, I mean ethics/morality).
I guess I’m somewhat of a pessimist that we’re going to further drive ourselves into oblivion, for the sake of process and bureaucracy, over outcomes.
C.F.R. § 1508.27(b)(1): “The following should be considered in evaluating intensity: (1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial.”
Your statement is true with regard to actions that have both adverse and beneficial effects, but NEPA does not apply if the effects are only beneficial. The point of this CEQ provision is to not allow an agency to avoid an EIS just because, after “balancing,” the benefits are perceived to outweigh significant adverse effects. An agency can choose to do an EIS whenever it wants to, but I don’t think that making that decision base on “positive” environmental intentions should imply a NEPA requirement to do so.