Five amazing facts about environmental review
We used to do things fast, and Patrick Collison has proof. The Stripe CEO maintains a list on his personal web page of feats of rapid, decisive action. Tegel Airport was built in 92 days in 1948 to support the Berlin Airlift. The Empire State Building took 410 days to construct. The 1,700-mile Alaska Highway was built in 234 days.
Why do we seem incapable today of the same sort of urgent action? The answer is surely complex, but at least part of the answer is environmental review. In the United States, a statute called the National Environmental Policy Act (NEPA) requires review of major federal actions “significantly affecting the quality of the human environment.” Federal actions include issuing of federal permits or approvals to private projects, and therefore NEPA effectively applies to these private projects as well. In addition to the federal NEPA, at least 20 states and localities have statutes, known as “Little NEPAs,” that require similar review.
Here are the key things you need to know about environmental review under the current implementation of NEPA.
Environmental review timelines are long and growing
The highest level of NEPA review is called an environmental impact statement (EIS), and it is used when a major federal action is likely to affect the environment. NEPA itself doesn’t say how long an environmental review needs to be, only that it needs to contain five specific elements: i) the environmental effects, ii) unavoidable adverse environmental harms, iii) alternatives to the proposed action, iv) a comparison of short-term environmental effects and long-term productivity effects, and v) irreversible use of resources.
NEPA took effect on January 1, 1970, and initially, these statements were quite short. Some were as short as 10 pages, with no record of complaints about them. But over time, as EISs were challenged in court, page counts increased. NEPA is a procedural statute; if a court finds an EIS to be inadequate, all it does is halt the project and instruct the agency to add a section to the EIS. In order to avoid such court orders, agencies started developing longer and longer EISs. Today, the average length of an EIS is more than 600 pages plus appendices, which themselves average over 1,000 pages.
This runaway page count inflation has also taken a toll on timelines to complete EISs. Conditional on completion, EISs now take an average of 4.5 years to complete, and the right tail of the distribution is long. The Council on Environmental Quality identified 4 EISs completed between 2010 and 2017 that took at least 17 years. During this time, no action could be taken on these projects. Not a single shovelful of dirt could be moved. And of course, this statistic leaves out EISs that are literally interminable.
Not only are EIS timelines long, they are growing. The latest annual report from the National Association of Environmental Practitioners finds that average EIS preparation time is increasing by about 39.5 days per year.
EIS preparation time from 2000 to 2018
We do a lot of environmental assessments
The federal government issues an average of 222 final EISs per year. While the need to wait on any individual EIS to complete can create serious problems for both private and federal projects, it isn’t where the majority of environmental paperwork lies. One level down from an EIS is an environmental assessment, used to determine whether there is a significant environmental effect and therefore whether an EIS needs to follow.
In recent years, the federal government has completed around 12,000 environmental assessments per year. The vast majority of these, more than 98 percent, conclude in a finding of no significant impact. The less than 2 percent that do not must go on to perform an EIS.
Complete statistics do not exist for environmental assessments, but due to the same litigation dynamic affecting EISs, they too have ballooned in length and can take years to conclude. For example, the draft environmental assessment for the proposed Loop between DC and Baltimore, which would shuttle passengers between the two cities at 150 mph underground in autonomous electric vehicles, currently clocks in at 505 pages.
Environmental review sometimes harms the environment
If environmental review was the only way to protect the environment, these lengthy processes might be worthwhile. In reality, the NEPA process is purely procedural. Federal agencies can go through the entire process, find that the action under consideration imposes huge environmental harms, and decide to go through with it anyway. The process doesn’t provide any substantive environmental protection.
Infuriatingly, the NEPA process even delays projects with clear environmental benefits. For example, Manhattan’s congestion pricing scheme is currently in NEPA limbo as it awaits guidance from the federal government over whether to prepare an environmental assessment or an EIS. Vineyard Wind, a $2.8 billion, 800-megawatt offshore wind energy project is also facing delays from environmental review. The Forest Service has testified that “each time we go through the appeal process or the courts, much of our limited resources are employed to defend the decisions we feel are crucial to restoring ecosystems and addressing forest health concerns” and that “[d]elays in restoration and forest health treatments…leave forests susceptible to insect and disease and predispose ecosystems to unwanted wildfire.”
NEPA, then, doesn’t actually privilege environmental protection. Like any procedural requirement, it privileges the status quo. Paperwork must be completed and boxes must be checked, and only then can the government take action to improve the environment. Although NEPA is popular with environmental lawyers, a better way to protect the environment would be through rigorous substantive standards that still allow for speedy and decisive action.
Environmental review reduces the effectiveness of fiscal stimulus
In 2009, facing the worst economic crisis in decades, President Obama signed the American Recovery and Reinvestment Act, appropriating $831 billion in stimulus to the ailing economy. One of the primary purposes of the Act was to create jobs through infrastructure construction projects. Unfortunately, these projects were subject to environmental review under NEPA, and therefore in some cases the spending that was allocated to prop up the 2009 economy didn’t actually materialize for many years.
The stimulus in the ARRA ended up being subject to around 193,000 NEPA reviews including over 7,200 environmental assessments and 850 EISs. During the time the reviews were being performed, no funds for the projects could be disbursed and no work could begin.
The entire purpose of fiscal stimulus is to rapidly inject funds into an economy that needs it to keep levels of spending stable. Because large portions of the stimulus couldn’t happen in a timely manner, it was rendered less effective, leading to a long and painful recovery. Environmental review, therefore, was partially responsible for the severity of the recession.
Both Democrats and Republicans have tried to improve the environmental review process
Improving NEPA isn’t a partisan issue. President Clinton’s Council on Environmental Quality concluded in a 1997 report that “…the exercise can be one of producing a document to no specific end. But NEPA is supposed to be about good decision-making — not endless documentation.”
President Bush issued EO 13274, Environmental Stewardship and Transportation Infrastructure Project Reviews, in 2002 to “expedite environmental reviews of high-priority transportation infrastructure projects.” Congress passed the Safe, Accountable, Flexible, Efficient Transportation Equity Act in 2005, which included provisions aiming to address the inefficiency of environmental review.
President Obama issued EO 13604, Improving Performance of Federal Permitting and Review of Infrastructure Projects in 2012, “to significantly reduce the aggregate time required to make decisions in the permitting and review of infrastructure projects by the Federal Government.” Also in 2012, Congress passed the Moving Ahead for Progress in the 21st Century Act, which introduced changes to the U.S. Code to try to expedite review for transportation projects. Obama also issued a Presidential Memorandum in 2013, Expediting Review of Pipeline Projects from Cushing, Oklahoma, to Port Arthur, Texas, and Other Domestic Pipeline Infrastructure Projects, to attempt to expedite NEPA review of pipeline projects. Congress passed the Fixing America’s Surface Transportation Act in 2015, which created a pilot program for states to administer their own environmental processes instead of NEPA if they met certain qualifications.
None of these actions has made a big difference in terms of accelerating environmental review or making it more effective. Environmental review timelines continue to grow.
The Trump administration is now taking a stab at improving environmental review, not by executive orders or legislation but by proposing changes to the NEPA-implementing regulations. The proposed changes would establish presumptive time limits, require a senior agency official to approve exceeding existing page limits, and would cabin the scope of review by narrowing some definitions consistent with existing case law. Josh Smith and I submitted comments in support of the changes with some further suggestions.
Some environmental groups have objected to the proposed changes, saying they will lead to more pollution. But this is not necessarily true. Since environmental review is merely a procedural hurdle, we can better protect the environment and boost living standards by substituting substantive protections, enabling decisive government action.
The federal government is a lumbering giant, but both Democratic and Republican administrations have understood the importance of moving faster. With reforms to NEPA’s implementing regulations, perhaps we will get a step closer to the action-oriented attitude of decades past.