Why Environmental Reviews Take So Long... And How We Can Speed Them Up
|Topics:||Administrative Law & Regulation • Regulatory Transparency Project • Environmental Law & Property Rights|
|Sponsors:||Administrative Law & Regulation Practice Group, Environmental Law & Property Rights Practice Group|
On January 1, 1970, President Nixon signed the National Environmental Policy Act (NEPA) into law. The law requires that the government issue a report—known as an environmental impact statement—before taking major federal actions that significantly impact the environment. NEPA is not a substantive environmental standard; the government can approve a harmful project. It is merely procedural, reflecting the sensible adage “look before you leap.”
Over time, this modest and sensible statute, has taken on a central role in U.S. infrastructure because U.S. courts have interpreted NEPA to require more and more analysis before the federal government may permit a new project. The first reports under the law were dozens of pages, completed in a matter of weeks. By 1998, the average report took almost 3 years to prepare. Since then, Presidents in both parties have tried to speed up the process, but it keeps slowing down. The average environmental impact statement issued in 2016 took more than 5 years to prepare.
Environmental reviews are not the only thing holding back new infrastructure in the United States, but one thing is certain: hundreds of projects across the United States cannot be started until these ever-lengthening NEPA reviews are completed. Even a very patient company wants some assurance that its investment will pay off within a decade or two so many investors will balk at the prospect of waiting six or seven years just for approval.
In a new paper, Mark Rutzick explains the court rulings that have caused the NEPA process to grow longer and longer and offers some suggestions about how Congress and the Executive might speed it up.