In the on-going rough-and-tumble of partisan politics, we are accustomed to accusations that one political party is advancing a proposal without having any idea of its likely consequences or, worse, in spite of strong evidence indicating a calamity. Those wanting to champion informed, evidence-based policy-making may feel they lack a viable path forward: No one person can run down the claims made in support of every major policy initiative, and occasionally supporters of genuinely good policies advance bogus arguments for them. What to do?
Fortunately, our political culture has developed several important vehicles for promoting evidence-based decision-making.
On very much the same level stands the National Environmental Policy Act (NEPA). The bipartisan creation of a Democratic Congress and a Republican President, NEPA has provided honest, if sometimes unwelcome, counsel to policymakers for more than four decades on a wide range of proposed federal projects. Often an environmental impact statement has provided reliable reassurance that a seemingly worrisome project could be undertaken without serious problems, causing opposition to melt away.
On other occasions, NEPA analysis has identified discrete concerns in an otherwise sound project and pointed the way to simple changes that allowed it to better serve its intended purposes and protect the environment. In our polarized environment, anything that guides us toward workable compromises is a treasure indeed.
Pending proposals in Congress, however, would rob NEPA of some of its most important and beneficial features. For example, some propose creating broad new “categorical exclusions” from environmental review. Current law quite sensibly directs agencies to exempt from review projects that by their very nature are unlikely to raise serious environmental concerns. This promotes efficiency.
Legislation passed by the House, however, would hijack the concept of categorical exclusions to prevent reviews of massive logging projects with huge environmental impacts. In the near term, legislating new categorical exclusions without scientific basis would lead to serious environmental damage, likely including soil erosion and runoff that contaminates downstream communities’ drinking water. In the longer term, it could feed an inefficient absolutism rejecting any categorical exclusions because they are likely to be abused.
Critics also have advocated limiting environmental reviews to the binary question of whether or not a project should move forward. The hope seems to be that important projects will have sufficient momentum to survive adverse environmental findings.
This is startlingly irresponsible. It would rob NEPA of its great strength: Identifying modest but important ways to improve projects. In many situations, the two worst possible outcomes are for a project to proceed as proposed and for the project to be cancelled. NEPA’s consideration of alternatives routinely finds paths forward that enhance both the project’s underlying goals and the health of the environment.
For example, a NEPA review found that the Army Corps of Engineers was harming fish by dumping material dredged from shipping channels around Galveston, Texas, in the middle of the bay. The Corps kept on dredging but used the material instead to create artificial marshes, benefiting waterfowl.
Other proposals would limit the courts’ ability to address blatant failures to comply with NEPA. With powerful moneyed interests often behind the project subject to review, it should be no surprise that the pressure to short-circuit reviews can become intense. Sometimes those responsible for conducting a review have become so heavily invested in the project that their objectivity is impaired, perhaps leading them to ignore superior alternatives or to try to shut out public input.
And sometimes a review approves one project — perhaps one with significant features to mitigate harms or monitor impacts — and the agency implements another, without those safeguards. In all these situations, recourse to the courts is essential to ensure the honest, informed decision-making that the law expects. We do not assume that administrative agencies will follow other laws without laws without judicial oversight; NEPA should be no different.
To be sure, NEPA is certainly not perfect. It could productively be amended to require greater attention to remote yet devastating risks — so-called worst cases — such as the failure of New Orleans’s levies after Hurricane Katrina. And, as Agriculture Secretary Perdue has argued, we should provide and protect stable funding to avoid delays in getting reviews completed.
Overall, however, NEPA has served this country well — protecting taxpayers, vulnerable local communities, and wildlife alike — for almost half a century by promoting informed, thoughtful decision-making. We should find ways to bring reasoned decision-making into other aspects of public life, not undermining the success we already have.
David A. Super is a professor of law at Georgetown Law. He also served for several years as the general counsel for the Center on Budget and Policy Priorities.