How Trump can undo America’s most expensive and least effective environmental law

How Trump can undo America’s most expensive and least effective environmental law
© Stefani Reynolds

When Congress passed a non-controversial measure in 1970 telling federal agencies to write reports disclosing environmental impacts of major federal construction projects — a measure supported and readily signed by President Nixon — the legislators never could have imagined that this minor law would evolve into a bureaucratic monster that has become the most costly and least effective environmental law in the history of the United States.

The government now writes thousands of environmental reports each year under this law, called the National Environmental Policy Act (NEPA). The reports are not limited to major building proposals — for dams, power plants, or highways — but are also prepared for minor activities with no environmental impacts at all. The true cost of NEPA reports is unknown because federal agencies are not required to disclose or even calculate their NEPA costs, and voluntarily-produced agency data is scattered. 

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For the biggest projects our federal government agencies complete some 250 “Impact Statements” annually, which on average take five years to complete and routinely exceed 2,000 pages in length, at a cost of roughly $10 million each.

Most NEPA reports — up to 50,000 annually — are smaller documents called environmental assessments for cases where NEPA does not require an impact statement. An assessment routinely takes agencies two years to complete at a cost up to $200,000, and one federal agency reported a four-year average assessment cost of $447,000.

A conservative estimate is that government-wide NEPA reporting now costs more than $5 billion annually.

Who or what transformed NEPA’s modest reporting requirement into the financial disaster it is today? The short answer: President Carter, environmental lawyers and federal judges.

In 1977, Carter signed an executive order commanding the Council on Environmental Quality to issue a NEPA reporting regulation that is binding on federal agencies. That regulation, published in 1978, was overbroad and unduly complex.

Since 1978 environmentalists have filed over 4,000 NEPA lawsuits seeking to delay or kill federal projects large and small. Courts quickly agreed that the council’s regulation is legally enforceable in court, federal agencies must strictly comply with it, and any error in a NEPA report requires a new document.

Lawsuits steadily enlarged the required content of impact statements and assessments, often tripping up federal agencies by demanding new information that the agency did not know was required. Available data suggests that in four decades court injunctions have delayed, and effectively killed, up 2,000 federal projects.

There is no evidence that the government’s vast NEPA expenditures for half a century have produced any equivalent benefit for the American people, or any benefit at all. NEPA reports are only advisory, and federal decision-makers are free to disregard environmental impacts if they so choose. 

No evaluation of agency decisions has ever been performed — by a federal agency, a congressional committee, or a private group — to identify and measure environmental benefits resulting from NEPA compliance. Yet, every year the federal budget includes undisclosed (and unknown) billions of dollars for agencies to continue to write NEPA reports.

NEPA’s runaway costs are not unsolvable. In fact, the president can take bold action to immediately rein in NEPA costs without new legislation. Most NEPA lawsuits rely on the council NEPA regulation, which is enforceable in court only through Carter’s 1977 executive order. With the stroke of his pen President TrumpDonald John TrumpConway defends herself against Hatch Act allegations amid threat of subpoena How to defuse Gulf tensions and avoid war with Iran Trump says 'stubborn child' Fed 'blew it' by not cutting rates MORE can withdraw Carter’s executive order. That would immediately defeat most NEPA lawsuits, save billions of our tax dollars — and get much needed federal infrastructure projects back on track.

It's time to rein in wasteful government bureaucracy, end meaningless delays to vital infrastructure projects, and save tens of billions in costs resulting from environmental regulation that has never demonstrated one ounce of improvement to our quality of life or the preservation of our lands, water or air.

Mark C. Rutzick, a natural resource lawyer has litigated major NEPA cases for over 30 years, and served as a senior natural resource advisor in the George W. Bush administration.