Brian Potter’s “How NEPA Works”: A View of NEPA From a Very Studious Newbie

It’s kind of fun to read when new folks try to describe NEPA world. I really like how Noah Smith rounded up different folks’ thoughts. 

To my mind, Smith did some pretty amazing round up and interpretation work. For this discussion, though, I’d like to start on the first article, by Brian Potter on Substack called “How NEPA Works.” Brian Potter seems to be a policy wonk type at a think tank who has taken an interest in this topic.

So many interesting things about this article. Lots of references to the work of NEPA for the 21st Century and various Mortimer and Stern papers including their “exploring across agencies” paper from 2009.

The paper has lots of comparisons across agencies. Some unfortunately do not separate the FS out from USDA (nor BLM from DOI) so we can’t really compare them.

So many possible discussion topics, but this one could be particularly of interest- it’s a section called NEPA, the Courts and Uncertainty, and I think Potter does a better job than I ever have of explaining why NEPA litigation can be seen as a problem to those working on analyses.

An example of this is the threat of lawsuits incentivizing the inclusion of more and more research in environmental analyses, regardless of its merits:

An excellent illustration of excessive analysis due to management uncertainty is the Beschta Report. Commissioned by the Pacific Rivers Council in 1995, eight scientists drafted a paper, “Wildfire and Salvage Logging,” commonly known as the Beschta Report.

The paper has never been published in any scientific or professional journal, nor has it ever been subject to any formal peer review. In 1995, Forest Service scientists and managers expressed strong reservations about the report, which contains many unsubstantiated statements and assumptions. Nevertheless, the courts have sometimes shown support.

Groups have challenged postfire recovery projects on the grounds that the Forest Service has failed to consider the Beschta Report. In four cases, the courts have ruled that Forest Service decisions violated NEPA because the associated records did not adequately document the agency’s consideration of the Beschta Report. In two other cases, courts have ruled in favor of the Forest Service on this issue.

In view of the court record, forest planners might feel compelled to thoroughly document their consideration of the Beschta Report’s principles and recommendations, even though the underlying land management issues are already addressed in the record. That includes documenting why some elements of the Beschta Report are not relevant to the specific proposed project.

The court record has inspired some groups to demand that the Forest Service consider other papers and articles supposedly relevant to proposed actions. Sometimes the proffered list of references exceeds 100 entries. To minimize the risk of adverse judicial opinions, land managers might feel constrained to fully document within the body of the NEPA document their detailed consideration of each and every paper or article.

Potter considers that even changing NEPA regulations can increase risk and uncertainty.

This mechanism seems to be behind the length of NEPA documents. The 1978 CEQ regulations state that an EA should generally be less than 75 pages, and an EIS should generally be less than 150 pages. But the uncertainty of what’s needed to comply with NEPA, and the natural risk aversion of government agencies, pushes these documents to be longer and longer.

In practice, figuring out what “bulletproof” entails is difficult. Stern 2014 gives an example of the Forest Service trying to figure out what sort of watershed analysis model is most likely to hold up in court:

…In one case, for example, an IDTL asked the Regional Office whether they could use a particular watershed model that had been used elsewhere. Personnel in the Regional Office instructed the team not to use the model because it would represent a departure from the traditional approach used on the specific forest and could expose the process to additional external scrutiny by setting a new precedent. The IDTL described the response from the Regional Office after the ID team submitted their preliminary report, which did not include the model.

“It was like [from the Region], ‘Hey, you need to run some models because there was this court decision, and it was up-held because they had model information, so you got to run the model for this.’ [laughing] It was kind of like, ‘okay that’s a 180 from what you told us initially.’ And then after the model was run, and we sent the document out, [the Region came back and said], ‘Oh jeez, maybe you shouldn’t have run the model because… the court case was reversed.’ [laughing]”

The uncertainty that the NEPA process creates – how thorough of an analysis will be required, how long it will take to perform, what sorts of mitigations will be required, what sorts of follow-up analysis will be required, will the analysis get litigated – makes it difficult to plan projects with substantial NEPA requirements. A mining executive noted that the NEPA process has resulted in the US having unusually burdensome permitting requirements by world standards:

In considering a new project the first thing I am asked is how long will it take and what will it cost to get it permitted. I can answer this question with a high degree of confidence in most jurisdictions around the world, with the exception of the United States. When I first began working with NEPA in the mid 1980s the time and cost to prepare an EIS for a mining project took about 18 months and cost about $250,000-$300,000. Today [2005] an EIS for a mining project may take 5-8 years and cost $7-8 million or more, before factoring in expected appeals and litigation of the ultimate decision. Thus, it is very difficult to make business decisions in the US under the current permitting environment on federal lands.

Reitze 2012 notes that NEPA is used to increase the costs and unpredictability of fossil fuel development, in an attempt to make renewable energy more attractive by comparison. And Glen 2022 notes that uncertainty around NEPA litigation also makes planning renewable energy projects (in this case, wind power) more difficult and risky. A transmission line executive noted in 2009 that the uncertainty and unclear case law around considering climate change impacts had created a “nightmare” for him.

This uncertainty also makes changing NEPA somewhat risky. Experts have noted, for instance, that rules to accelerate NEPA processes or impose maximum timelines might result in more of them being challenged in court (by failing to take the proper “hard look”). One consultant for energy projects suggested that the Trump-era NEPA changes (which have since been rolled back) were likely to increase project uncertainty and delay of energy projects in the short term, as the changes would result in increased litigation.

Potter goes on to talk about that it’s not entirely NEPA and NEPA is an umbrella.. and a variety of other topics we are familiar with. Are you surprised by any of his paper?

7 thoughts on “Brian Potter’s “How NEPA Works”: A View of NEPA From a Very Studious Newbie”

  1. Perspective is an interesting thing…. “A mining executive noted that the NEPA process has resulted in the US having unusually burdensome permitting requirements by world standards”

    Well, one man’s burden is another man’s health and welfare….

    • Nick, I think there are three things going on there..

      1. Appropriate regulation.. you would actually have to be in the weeds of the topic to figure this out. But it’s got to be some kind of judgment call.

      2. Slowing down, but not necessarily stopping, which doesn’t result in any difference at the end of the day.

      3. Impacts of exporting production to countries with poorer environmental regulation.

      It would be nice if one option were to simply stop using mined products.. but I don’t think that is feasible. That’s to me, why funding more engineers (finding alternatives) might be better for the environment, workers, our balance of payments, and our tax base.

  2. I’ve never really understood the idea of “overdoing” NEPA due to fear of litigation. The rules of the game are pretty simple. An agency only has to deal with issues raised by the public during the NEPA process. That should require 1) the public to connect any scientific arguments about effects to the facts of the proposed action (they can’t just send in a long list of references), and 2) the agency to provide a meaningful response to those arguments. (It might help if agency specialists would view themselves as being good at that – instead of maybe viewing themselves as being the expert.) My guess on the court cases citing the Beschta Report is that the judges did not take a position on the validity of the Report, but rather said that the agency didn’t explain why it should be inapplicable to a project.

    A report by the Forest Service notes that “Team members often believe that much of their work is ‘for the courts’ and not particularly useful for line officers who make decisions.” Unfortunately the link to that report didn’t work, but I’m wondering whether that perception is because they know the line officers don’t care much about environmental impacts. That’s not a fault of NEPA.

    “over time more and more potential impacts have had to be included in NEPA analyses.” I do think that climate disruption is kind of a conundrum, where NEPA is in the “bring me a rock” phase. It is the kind of thing that the government should be trying to figure out to make it more efficient, but seems stymied by political polarization.

  3. There’s a lot to unpack in the article (good analysis and data!) and the comments (interesting!) but I’ll just say this. NEPA is, in fact, a simple procedural law. And, in fact, you could NEPA any damn thing from horrible to amazingly good and comply as long as you dot your i’s and cross your t’s. I guess what gets me is that there’s some idea that NEPA is somehow unfair or unworkable because its purpose is to require some MINIMUM standard of analysis to actions that had never previously been held to any standard of judgement for harm or good. If agencies and industry had EVER BEEN RESPONSIBLE with regards to impact, public safety, or environmental consequences would NEPA, in its current form, even exist? So I’m absolutely going to hold government accountable for doing what’s required by law with regards to the public lands and resources that WE ALL OWN. And regarding litigation – if agencies want to be average then just do the minimum and get a C and go to court. If agencies want to be excellent then do the work to be excellent, get an A, and defend your work in court if necessary (but if your work is excellent then it’s very defensible). As a taxpayer I’m going to demand excellence for my $$$.

    I will add one other comment – it’s entirely laughable to read how onerous NEPA is to extractive industry when you consider that those industries have plundered the resources of this country since before there was this country and used every legal and political resource at their disposal to further their own interests – my interests as a citizen be damned.

    • Well spoken, Nick…I have personally used the “would NEPA even exist?” question many times to point out the failings of considering the holistic effects to public safety and environmental consequences. The law was created to correct these failings.

      As for NEPA’s purpose, I was schooled on this long ago by the best ranger I worked for. She pointed me to the phrases found today in 40 CFR 1500.1:

      “NEPA’s purpose is not to generate paperwork or litigation, but to provide for informed
      decision making and foster excellent action.”
      “Finally, the regulations in this subchapter promote concurrent environmental reviews to ensure
      timely and efficient decision making.”

      Bottom line? It’s the quality of the decision that matters, as supported by the procedural framework of NEPA.


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