This piece originally appeared at Statutory Alpha.
Permitting reform is a hot topic in Washington. On both sides of the aisle, there is a growing understanding that building the infrastructure for a cheap and bountiful future is currently beyond our abilities. So, as reform proposals start to trickle out for the inevitable legislative push, it’s a great time to examine the causes of our current paralysis. And what better place to start than the most burdensome permitting law of all, the National Environmental Policy Act (NEPA).
Briefly, the law requires that agencies consider the potential environmental effects of their actions. It started off simply, with reports sometimes only dozens of pages, but has morphed over time into a monstrosity requiring half-decade-long reviews and multi-thousand-page tomes. Commentators largely agree that the main roadblock is judicial review of agency decisions. But little attention has been paid to how that roadblock got there. By what mechanism did a simple requirement to consider potential environmental impacts turn into one of the most burdensome pieces of legislation in US history?
A Very Brief History of NEPA
Environmental disasters of the 1960s—burning rivers, choking smog, vanishing species—drove Congress to pass NEPA in 1969, requiring federal agencies to produce "detailed statements" assessing environmental impacts before acting. Agencies initially ignored the law: the Trans-Alaska pipeline's first statement ran eight pages for an $8 billion project. When Friends of the Earth sued in 1970, construction halted for five years while lawyers logged 4,500 hours (worth millions today) producing a nine-volume, 3,500-page environmental impact statement. The Supreme Court ruled in 1975 that plaintiffs couldn't recover these massive legal costs, so agencies kept flouting NEPA until the Council on Environmental Quality (CEQ)'s 1976 report documented this widespread non-compliance, prompting Carter's 1977 executive order granting CEQ binding authority over all agencies. Congress then passed the 1980 Equal Access to Justice Act, overturning the Court by allowing fee recovery in suits against federal agencies.
