The Trump administration announced last year that the environmental review process for certain infrastructure projects — mostly involving transportation — would be dramatically accelerated. Since the National Environmental Policy Act (NEPA) was signed into law almost 50 years ago by President Nixon, this review process has been incredibly important to improving government planning and avoiding (or at least limiting) countless environmental harms. It does this by requiring agencies to stop and consider the potential harms of, and reasonable alternatives to, proposed government actions.
The law, “our basic national charter for protection of the environment,” has been mimicked all over the world. As stated in congressional testimony by Admiral James Watkins, then-secretary of Energy who worked in the Reagan and the first Bush administrations, "Thank God for NEPA because there were so many pressures to make a selection for a technology that might have been forced upon us and that would have been wrong for the country."
Overall, a 2014 report by the Government Accountability Office found that NEPA saved money, time and improved big projects while protecting the environment. Even the current administration acknowledges on its own website that “NEPA has been effective in providing public officials with the information they need to make better decisions.”
But there is another, perhaps even more important, American value that NEPA embodies: It promotes transparency and citizen participation in public decisions — the lifeblood of democracy. It requires agencies to find out what affected parties and the public think about its analysis, and to at least consider the ideas that other agencies, stakeholders and the public have for improving the decision.
As a practical matter, the process forces agencies to take a critical look at their plans and ask, “will this end up in court?” By taking that time before moving ahead with projects and permits, it helps the government and others prepare their plans not only to avoid legal challenges but withstand them. That dynamic not only makes government decisions better; it helps ensure that democratic institutions are accountable to the public. In fact, the biggest critics of NEPA have been special interest groups that want as little government oversight as possible as their companies pursue profits.
Now, President TrumpDonald TrumpBaldwin calls Trump criticism following 'Rust' shooting 'surreal' Haley hits the stump in South Carolina Mary Trump files to dismiss Trump's lawsuit over NYT tax story MORE is trying to roll back NEPA through a variety of misguided administrative changes. The U.S. Forest Service, through a regulatory proposal for which the public comment period ended Aug. 12, seeks to avoid NEPA reviews for various projects that could make approval of logging and other construction activities easy. Another proposal by the White House Council on Environmental Quality, for which the comment period ended Aug. 26, seeks to roll back guidance that helped agencies engage in rigorous climate analyses. And to erode NEPA more broadly, since 2018 the administration has ominously been planning a complete overhaul of NEPA that may be released as soon as next month.
The most damaging NEPA rollback by Trump to date has been the creation of a “One Federal Decision” policy for major infrastructure projects. In the name of streamlining, it sets an arbitrary two-year limit for review of such projects, even though the only analysis promoting such a deadline has been uniformly discredited. The policy also dictates that the federal government can only have one decision on an infrastructure proposal, demoting those agencies that have health or conservation expertise and boosting those charged with development.
One of the most maddening aspects of this policy is that it may not even result in more quickly built infrastructure: Not only may the government be sued more, it will likely lose those suits because it won’t have had the time to engage in the careful planning that NEPA necessitates. More worrisome still is that such haste is likely to reduce the quality of NEPA analyses and may lead to badly designed infrastructure and preventable harms to communities and the environment.
NEPA is the policy equivalent of looking both ways before crossing the street. We know what happens when government and industry don’t look both ways. The water crisis in Flint, Michigan, happens. Ohio rivers catch on fire 13 times. Lives are lost. And oil turns up on Southern California shores.
Time, patience, and diligence are hard, but they help keep people from getting sick and our environment healthy. We need to ensure that NEPA remains front and center in our democracy.
Alejandro Camacho is a professor of Law at the University of California, Irvine, and a member-scholar of the Center for Progressive Reform.