In 1996, Donald Trump was hoping to bounce back from a series of poor investments. So he bought a palatial mansion in Westchester County, New York, just north of New York City. The mansion, called Seven Springs, sat on 230 acres of undeveloped wilderness. Trump wanted to turn it into a golf course.
But the nearby village of Mount Kisco, with a large Latinx population and a lower median income than the four wealthy towns the property touches, gets its drinking water from Byram Lake, directly adjacent to Seven Springs. The town worried pesticides from the golf course would run off into the lake and contaminate its drinking water.
The village of Mount Kisco hired Michael Gerrard, an environmental lawyer, to protect its water. And Gerrard had a plan, the same plan he deployed to successfully stop a highway on the west side of Manhattan from being built in the 1970s and countless incinerators, landfills, and other environmentally harmful projects at other locations over the years. The plan was to use environmental review laws.
“One strategy is just to require more studies in the hope of finding something bad,” Gerrard, who is now a professor at Columbia University, told me recently. It’s a strategy that often works, to the appreciation of people who oppose such projects and the frustration of those who support them.
This is exactly what Gerrard did to fight Seven Springs. Gerrard and Mount Kisco knew the risk of pesticides in Mount Kisco’s drinking water was high and that the Clean Water Act of 1972 provided avenues for blocking the golf course if they could prove it.
“A close reading of the appendices to the environmental impact statement (when laid against state regulations) revealed that pesticide levels in the runoff could exceed drinking water standards under certain scenarios,” Gerrard wrote in a blog post in July 2015. In response, Trump’s course designers and lawyers proposed a filtration system that had literally never been used before. Mount Kisco activists wore buttons saying “We’re Not Trump’s Guinea Pigs.” Regulators for the state’s environmental department ruled a pilot test on the filtration system would be needed before the course could be built. After eight years of this—by which time Trump had bought and renovated another Westchester County golf club, in Briarcliff Manor—Trump gave up on the golf course idea.
“In the end, the environmental-impact review process and the Clean Water Act did their jobs,” Gerrard wrote. “The people of Mount Kisco still enjoy clean drinking water, and the occasional dandelion still pokes its head through the grass.”
Although little known, the story of Seven Springs is a triumph for environmental protection laws. It is “the dog that didn’t bark,” as several people interviewed for this article characterized cases where environmental protection laws—most prominently the National Environmental Policy Act of 1969, otherwise known as NEPA—did their jobs. They are the stories of lakes not poisoned, forests not cut down, air not polluted, and dams not built, preserving and protecting finite environmental riches from the insatiable demands of capitalist growth.
But the same environmental review process Gerrard so successfully deployed is being increasingly criticized by the very groups that once harnessed its powers so successfully. Now, critics observe, those same groups and laws slow or even stop the construction of necessary infrastructure, the shortage of which is causing grave societal ills. We cannot build the affordable housing we need, the public transportation we lack, and the wind and solar farms we so desperately require, and a growing chorus of critics point to environmental protection laws as a major culprit of the holdup.
To some extent, Gerrard has become one of those critics. In 2017, he wrote an academic article on ways to bring about a “massive increase” in renewable energy capacity. It named NEPA as one of the four “most important obstacles” to achieving that goal, along with permitting processes, state and local approvals, and endangered species protection laws.
The theory that NEPA is a key explanation for why we can’t build things anymore is hardly fringe. A surprisingly ideologically diverse coalition has emerged in recent years that broadly agree environmental reviews are now more a problem than a solution. Joe Manchin has made “permitting reform”—often a euphemism for environmental reviews—a key priority. M. Nolan Gray, author and researcher for California YIMBY, a pro-housing and urbanist group, wrote in The Atlantic that the state’s environmental review law is an “unexpected impediment to California’s going green.” The conservative Manhattan Institute has been advocating for a “rethinking” and “streamlining” of environmental reviews for years. So has the libertarian Reason Magazine. Perhaps the most prominent recent critic of the environmental review process is the New York Times columnist Ezra Klein. The focus of his criticism has been the failures of modern liberalism, and the environmental movement specifically, who have wanted to slow or even stop harmful projects, he argues.
“The environmental movement cheers when Biden says he wants to decarbonize and fast. But if he said that in order to achieve that goal, he wanted to reform or waive large sections of the National Environmental Policy Act to speed the construction of clean energy infrastructure,” Klein wrote, “he’d find himself at war.”
I agree with much of what Klein and other environmental review critics have to say. But I also fear their often brief one-sentence acknowledgments of the intrinsic, unassailable value of environmental protection laws to accomplish really important goals—"That it’s easy to breathe the air in Los Angeles today is their [Rachel Carson and Ralph Nader’s] legacy, and they should be honored for it” as Klein put it—is not enough and broadly misrepresents what our problems actually are.
NEPA and other laws like it are not only fundamental but also essential to the basic mission of environmentalism in the broadest sense, which is to leave the planet better off than we found it. The good news is a lot of experts believe the problems with the environmental review process can be solved without changing a word of NEPA, because the devil is not in the words of the text itself but rather in the resources and methods with which officials interpret it.
Environmental review laws cut to the very core of basic questions of American life: Who should have a say in what we build, how should we weigh competing priorities, and how should we settle disputes about those priorities. Almost everyone I spoke to agreed that the environmental review process can and should be improved just as anything needs to be maintained and improved to adapt to changing times, but that doing so doesn’t require changing a single line of text in the law. They also almost all agreed NEPA is deeply, fundamentally necessary.
Among the things I learned reporting this article:
- 180 countries and jurisdictions have environmental review laws. Many, including those in countries where green infrastructure is often built efficiently and cost-effectively, work similarly to ours. And several, including the United Kingdom and Norway, also have problems with extensive project delays due to environmental reviews but nevertheless succeed in building large green-energy and infrastructure projects.
- An oft-cited statistic about federal environmental reviews taking an average of 4.5 years is deeply misleading because the environmental review is often put on hold for reasons that have nothing to do with the review process.
- When delays do happen, it is often due to a lack of agency staff or experience to handle the workload.
- Every agency at all levels of government has a lot of leeway in how it actually implements the environmental review process. Experts who’ve worked in and with these agencies for decades tell me it is these decisions that have far more impact on how well the process goes than the law itself.
- Many delays inherent to the review process have to do with basic errors like agencies not coordinating with one another and doing things consecutively rather than concurrently or having different project management software that can’t work together.
In his long career, Gerrard has been on all sides of the environmental review process. He’s worked for government agencies trying to get projects done and for activist groups fighting to stop them. He knows the process needs to work better to reduce emissions. But even though he is in favor of some reforms to get green energy projects out the door quicker, he is not willing to condemn NEPA to get that done.
“NEPA is often the whipping boy for project delays,” Gerrard said. “Sometimes that's deserved, but more often not.”
NEPA says the federal government has to consider the effect of any major federal action on the environment, such as the building of airports, military complexes, or major construction on federal land. When such an action is proposed, the federal agency will conduct an environmental review—either a shorter, less intensive one, called an environmental assessment (EA), or a longer, more detailed one for projects expected to have a big impact on the environment, called an Environmental Impact Statement (EIS).
The purpose of these reviews is not to mandate the government to do whatever has the least environmental impact or is most beneficial. It is not to mandate anything at all. It is simply to assess what the likely effects will be.
“In theory, a federal agency could propose to drop a proton bomb over Manhattan. And as long as they look at the impacts, they can do it,” Fred Wagner, a lawyer at the firm Venable who has decades of environmental review experience on transportation projects, told Motherboard. “I mean, it's silly. But that's the way the law works.”
In the extensive legal literature on environmental reviews, this concept is known as the “Look before you leap” doctrine. You’d have to be an idiot, the logic goes, to leap without looking. But this is precisely what the U.S. government did before NEPA.
“We used to build things” has become such a ubiquitous critique of modern American society that it’s a meme. It is true; we used to build things: some 8,100 major dams creating new reservoirs and altering a third of the continent. 161,000 miles of highways dividing ecosystems, destroying neighborhoods, carving massive boundaries across the land, paving over good chunks of the country. 11,000 electric power plants spewing who knows what into the sky and the air we breathe. 141,000 miles of train tracks, hundreds of millions of acres of trees logged before we even knew all that much about them.
And we did almost all of it having no idea what would happen to the environment we were disrupting. After the environmentalist movement of the 1960s—which began in earnest with the publication of Rachel Carson’s Silent Spring in 1962, one of the first great environmentalist exposés about the chemical industry hiding the harmful effects of pesticides—there was broad agreement we had to start looking before leaping. In 1969, the National Environmental Policy Act passed the House 372-15 and the Senate unanimously—bipartisan support that would be unfathomable in today’s politics. Richard Nixon signed it into law on Jan. 1, 1970.
NEPA was a first of its kind; no other country had anything like it at the time. It is often referred to as the Magna Carta of environmental review laws. Early NEPA court cases were about whether the law should apply to the construction of new nuclear power or coal plants (the answer was yes). Early EIS’s were a few dozen pages long. Since then, dozens of states followed with their own environmental review laws, often called “Little NEPAs,” which in some cases go far beyond NEPA in terms of the review and remediation requirements. These state laws are important because they cover projects that don’t involve federal land or money that nevertheless have important impacts on the environment. It was New York’s Environmental Quality Review Act, which was inspired by NEPA, for example, that Gerrard used to save Mount Kisco’s water.
Critically, much of the actual process for how all these reviews were to be done was left up to the courts. Judges, not legislators, decided how NEPA was applied. What constitutes a thorough enough environmental review? How many alternatives must be considered? What kinds of alternatives must be considered? NEPA says the public must have the opportunity to comment on the proposed project and its impact. How much time to comment? Does the agency have to answer these comments? How substantial must the answers be? All of these questions and more could be grounds for a lawsuit.
This, more than any other issue, is where the criticism comes in. Because for groups with enough money or time (it’s best to have both), projects can be stalled for years, even decades under certain circumstances, using the various legal nuances around environmental reviews. A few of the most notorious examples: a wind farm off Cape Cod that fought lawsuits for 16 years before giving up, a wind farm in Wyoming that first applied for federal permits in 2008 and finally got them in 2019, a ban on solar farms in one of the sunniest places in the world because they would ruin the views.
In other cases, the mere threat of a lawsuit causes agencies doing the environmental review to slow the process down. “I’ll give you an example from a project I’m working on,” Wagner told me over the phone recently, although he declined to say which project it was for confidentiality reasons. “The project opponents filed—and I’m not making this up—450 pages of comments. 450 pages! What do you do with that?”
The answer, Wagner said, is the agency has to answer them or else the people opposed to the project can sue the agency on the grounds that it didn’t properly conduct the environmental review process. And to answer those questions will take months of staff and consultant time. Consultants cost money; the staff can’t work on other, more important things; and the delay means the materials the project would use and the people it would pay only get more expensive in the meantime.
And if the opponents get really lucky, they’ll catch the agency saying something that can then be grounds for a different type of lawsuit, one that challenges the project itself. In the case of Westway, the highway project in Manhattan that Gerrard helped stop, the grounds for the successful lawsuit was not that the highway would lead to air pollution or prevent more environmentally friendly uses of the land, like the country’s most-used bike path which it is today. It wasn’t even that the highway would disrupt the natural habitat of the striped sea bass. Instead, it was that the Army Corps of Engineers knew the project would disrupt the habitat of the striped sea bass but didn’t disclose it in the environmental review. If they had simply disclosed that, Gerrard said, Westway almost certainly could have been built.
But project opponents don’t necessarily need to find such a silver bullet. They could simply keep submitting comments, questions, and lawsuits until the company trying to build the project gives up, the politicians in favor of it get voted out, or the delays become too expensive for anyone to stomach.
Sometimes, the mere presence of opposition is enough. When a legal challenge seems likely, Wagner says, the agency will typically lean on him to do more. “Give me more,” Wagner says the agency keeps telling him. “More what?” he will ask. “What exactly do you need?” And they will reply, “More.” More reviews, more opportunities for public comments, extended comment periods, and more answers to those comments. So when the lawsuit inevitably gets filed, they can go to the judge with a long record of saying they asked for more.
This is the simple story. NEPA processes have run amok, small groups of well-resourced opponents have too much power, the legal process is a joke utterly unconcerned with the bigger picture, and vitally important infrastructure to save the planet or solve the housing crisis isn’t getting built because of it.
As we’ve seen, there are obviously cases where this is exactly what happens, and it is more likely to happen on the biggest, most transformative projects that will generate the most disagreement. To be abundantly clear, there is no question that this is an unfair and unjust way of doing environmental reviews.
But condemning the entire environmental review process based on these anecdotal cases is not only wrong from a statistical perspective but also risks making the cure worse than the disease.
It’s the bureaucracy, Stupid
One of the most common pieces of evidence cited against NEPA is the statistic that the average environmental review takes four and a half years. This number comes from a 2020 review by the Council of Environmental Quality (CEQ), an office within the executive branch. And it sounds bad. Four and a half years would indeed be a long time to sit around waiting for the environmental review to be completed before a project could start.
But the study analyzed just EIS’s, the rarest, longest and most complicated of the types of reviews. Every year, some 45,000 NEPA decisions are made, but just 450 of them are EIS’s, or one percent of all decisions, according to the CEQ. So of course it self-selects for the types of reviews that are likely to be the most detailed and most contentious and take the longest.
On top of that, NEPA reviews do not happen in a vacuum. Most agencies use NEPA as a kind of umbrella statute to loop in other necessary reviews, permitting procedures, and other types of bureaucracy. Other environmental laws, like the Clean Air Act, Clean Water Act, Migratory Bird Treaty Act, and others require their own reviews, which get looped into the NEPA process. If NEPA went away, those reviews would still have to be done. (Similarly, environmental reviews under state laws typically encompass the entire land use planning and permitting process.)
Many other planning aspects of the project are happening concurrently. Sometimes, the NEPA process is delayed for reasons that have nothing to do with NEPA or environmental laws in general. The company seeking to do the work may not be timely in responding to inquiries. The scope of the project may have changed, which means some review work has to be redone. A new politician may order the environmental review to be slow-walked for some reason. And agencies may simply not have adequate staffing to do the review quickly or to properly coordinate with other agencies involved in the review.
But the CEQ didn’t look into the specifics of any of the reviews that took a long time or what the common sources of delays are. In fact, one of the most astounding things I came across researching this story is how little is known or studied about exactly when and why NEPA reviews take a long time beyond a few high-profile anecdotal cases. The Government Accountability Office, a federal agency, published a report in 2014 with the subtitle “Little Information Exists on NEPA Analyses.”
Part of the problem is most federal agencies have no method of tracking such things, making a comprehensive analysis difficult. But one, the U.S. Forest Service, does. And last year, researchers published a study analyzing 41,194 NEPA decisions from the Forest Service between 2004 and 2020. And what they found ought to have blown up the idea that NEPA itself is the problem.
“Delays, we found, are often caused by factors only tangentially related to the Act, like inadequate agency budgets, staff turnover, delays receiving information from permit applicants, and compliance with other laws,” the researchers wrote. “Improving NEPA efficacy, we argue, should therefore focus on improving agency capacity.”
Of the 41,194 NEPA decisions the Forest Service made, the overwhelming majority of them (81.2 percent) were categorical exclusions (CE), or types of projects that CEQ has consistently found do not have a significant effect on the environment and therefore get expedited reviews. (Incidentally, many NEPA critics seem unaware of the existence of categorical exclusions and propose something very similar as a fix for its perceived problems. But the exclusion concept, which is also in many Little NEPAs, can be abused as well. In California, waterfront sports stadiums like the new Oakland A’s ballpark regularly get exemptions while public transportation projects do not, although a proposed bill heading to the governor’s desk would give blanket exemptions to mass transit and bike lane projects as well. The upshot is there are already mechanisms to exempt or streamline reviews for obviously “good” projects; they are just poorly used). These reviews are, generally speaking, streamlined and efficient, taking a median time of just under four months. Another 16.7 percent of decisions were the middle-ground EAs, which took a median of 1.2 years. And the EIS’s, of course, took the longest, with a median of 2.8 years.
These timeframes make sense—more complex reviews with a larger environmental impact generally take longer—but the researchers found important evidence that gets to the heart of what’s wrong with environmental reviews. Sometimes, a CE analysis, which requires the least of any three levels of review, takes longer than the median reviews for both EAs and EIS’s. Which is to say, requiring less review will not stop outlier cases from taking a really long time.
Repeatedly, the researchers found that the cause of delays was not excessive red tape or onerous reviews but understaffed and overburdened agencies. A 2009 GAO study looked at 250 land exchanges at the Bureau of Land Management and the Forest Service that had to go through environmental review. Agency staff told the GAO the biggest delays were shrinking staff levels due to “an increasing number of retirements.”
Agency priorities also pulled staff away from environmental reviews. For example, the Forest Service routinely missed review timelines because staff had to address wildfires and fire suppression emergencies, evidence the problem is not an excessive bureaucracy but an overburdened one. Likewise, a former attorney at the Department of Transportation identified “insufficient staff and resources” as two of “the biggest hurdles federal agencies face when working to meet their NEPA requirements in a timely manner. Budgets of federal agencies continue to, with few exceptions, be decreased by Congress in annual appropriations, yet the workload remains.”
As the researchers pointed out, “These are serious problems that must be addressed, but they are problems that grow from an under-resourced agency struggling to adapt to a rapidly evolving mission. They are not problems rooted in agency NEPA regulations or practice.”
Even in cases where the Forest Service was sued over its environmental analyses, the popular narrative doesn’t quite hold up. In 227 cases, judges issued rulings on alleged NEPA violations in Forest Service reviews, and the Forest Service lost 112 of them. But in almost half (42) of those losses, the judge also found the Forest Service violated the National Forest Management Act, a key piece of environmental legislation to protect America’s forests from timber harvesting. By catching violations of federal law, these cases are successes of environmental legislation, not failures.
Don’t hate the game. Hate the players
The way in which NEPA critics present all delays and lawsuits as evidence of NEPA’s failures glosses over a critical point. Voices like Klein of the Times have a tendency to make it sound like the government promoting unjust, wasteful, and environmentally harmful projects is a thing of the past. They cast NEPA as a tool for an age of ignorant, insensitive government that has long since passed. Unfortunately, this is far from the case.
Consider highway projects, for example. Transportation emissions experts largely agree that highway expansions need to have stopped yesterday in order to achieve climate goals while providing few if any benefits to travel times. Yet every state continues to expand its highways and has plans to do so years or decades into the future, having learned surprisingly little from the mistakes of the past, believing that literally covering the highway will solve the problems it creates. NEPA is the critical tool for slowing or stopping those projects because it catches state transportation agencies in a lie about the climate and environmental justice impact these projects will have.
For example, a group of activists in Texas seem to have caught the Texas department of transportation, TxDOT, deceiving the public in its environmental review, and have sued the agency for violating NEPA. Activists in Portland, Oregon, successfully sued its department of transportation as well for conducting the wrong type of environmental review about a highway expansion right next to a middle school. Another lawsuit is seeking to stop a new 280-mile highway in Arizona. If you are in favor of highway expansions, these are egregious abuses of the environmental review process and ample evidence of the need for reform. If you are opposed to highway expansions, this is a demonstration of NEPA working as intended, punishing transportation agencies for not being forthright with the public about the harms we know these projects will create.
Similarly, the United States Postal Service was sued by 16 states and environmental groups for conducting one of the shoddiest environmental reviews of all time for the purchase of its new delivery fleet to justify buying almost entirely all gas trucks at a time when nearly all private delivery companies are moving toward electric trucks. Depending on your perspective, this was either, an egregious abuse of the environmental review process or a necessary check on a disingenuous sidestepping of federal law. The USPS has since upped its electric truck order to 50 percent of the new fleet.
NEPA is also a critical tool in fighting the construction of new fossil fuel infrastructure. It played a part—although hardly the only part—in stopping the Keystone XL pipeline. And the Standing Rock Sioux tribe scored huge victories against the Dakota Access pipeline thanks to court rulings that the permitting process violated NEPA (it is also a demonstration of the limits of NEPA; a judge ordered the pipeline shut down while a proper environmental review took place, but an appeals court judge overturned the ruling, so the pipeline continues to operate).
If you care about climate change, all of the above instances are either NEPA success stories or potential success stories, instances where NEPA gave the public a chance to fight against polluting infrastructure that otherwise certainly would have or will be built. And they are not isolated cases. In 2015, the National Resource Defense Council put together a list of NEPA “success stories.” Many of them never resulted in lawsuits, but instead saw agencies do the right thing after the public comment period yielded significant legitimate concerns.
These dozens of success stories must be considered in the context of the dozens of scare stories in which environmental reviews slow down or stop necessary projects. Keith Woodhouse is a historian at Northwestern University and wrote a book on the radical environmental movement of the late 20th century, which included extensive research into how various environmental groups utilized NEPA. He said it is especially important for those who want to build green energy infrastructure to recognize NEPA’s importance.
“To me, this is kind of a baby/bathwater problem,” he said. “And I just think that the idea that NEPA and related laws are sort of fundamentally indicative of the wrong way to govern just doesn't understand the importance of these laws and the good work that they still do, even including in terms of dense housing and renewable energy.”
Woodhouse’s point was emphasized months later when Sen. Joe Manchin, a staunch advocate of fossil fuels, and Senate Majority Leader Chuck Schumer announced a compromise on climate and energy policy bills that would accomplish many clean energy goals but would also include provisions to ease permitting requirements on fossil fuel projects and guarantee a maximum timeline of two years on NEPA reviews for “major” projects. That particular side agreement has not been drafted yet, but arbitrary timelines and round numbers of “necessary” projects that get to bypass NEPA are unlikely to address any real underlying problem.
Is it the law, or is it us?
The question at the heart of all of this is what do we actually want out of environmental review laws. If the concept of environmental review and public input on major projects is still something we as a society value, then the answer is not arbitrary timelines or waiving the process entirely for certain types of projects, because today’s environmentally friendly project may be tomorrow’s environmental disaster.
If we really do still want the things NEPA calls for, then the answer is to focus on the unsexy but vital work of making sure agencies are adequately staffed and prepared to handle NEPA requirements. Even the over-review out of litigation fear can be mitigated if agency staff have greater confidence in themselves and their work due to decades of experience, knowing what types of alternatives must be studied or not, what constitutes adequate public comment answers, and so on.
To cement predictability in how NEPA cases are ruled, Wagner, the environmental lawyer at Venable, suggested the creation of a specific technical court within the federal system for hearing environmental law cases, which could be done by amending the Administrative Procedure Act, which governs how federal rules are made and managed. This, he argues, will ensure cases are heard by experts on environmental law rather than federal circuit judges who might set unrealistic standards for adequate review. This would help federal agencies be more confident in knowing which project alternatives they have to study or how to deal with obstructionist naysayers. The problem now is they don’t know what standards they will consistently be held to by the courts, so they take the most risk-averse path, even if it causes months or years of delay. Utah will soon have water courts with judges who are experts in water law for similar reasons. A designated court with more consistent standards, Wagner believes, “would help a great deal.”
I happen to think that is the right answer, that NEPA still serves an incredibly important societal purpose and should not be brushed aside in the name of expediency, and instead we should double down on administering NEPA more effectively. But I also freely admit it’s an unsatisfying one, because it leaves us holding the bag of deep societal conflict. As Ted Boling, an environmental lawyer at the firm Perkins Coie, told me, “NEPA does not create controversies. Controversies exist. NEPA puts a spotlight on them.”
Almost everything that has ever been worth building—and many things that were not—have been controversial and divisive. Much of the reason many Americans believe we used to build things efficiently and without controversy in this country is because that controversy was either poorly documented or stemmed from populations the government did not recognize as legitimate. In Marc Reisner’s classic book Cadillac Desert: The American West and Its Disappearing Water, there is a photo from May 20, 1948 of the Secretary of the Interior signing a contract in which the Fort Berthold Indian Tribe sold 155,000 acres “of its reservation’s best land in North Dakota,” as Reisner put it, to build a dam and reservoir. More than 1,700 residents and three towns were forcibly relocated and the tribe was compensated well under market value for the rich agricultural land they had inhabited for more than a millenium. In the photo, George Gillette, the chairman of the Fort Berthold Indian Tribe Business Council, openly weeps as the contract is signed. Every other federal official in the photo ignores him. In Cadillac Desert, the caption for the photo quotes Gillette saying, “Right now, the future does not look good to us.” But the Getty Images caption quotes him as “Right now the future does not look too good for United States.” The difference is a revealing one.
The U.S. is hardly a bastion of equality today. but NEPA allows those controversies to exist more openly, more justly, and gives Gillette’s descendants some legal recourse to have an open debate about projects like dams that would destroy their livelihoods.
Most countries have some type of environmental review processes, and whether they work “better” than the U.S.’ is in the eye of the beholder. For example, Elif Ensari, a researcher for NYU who has looked into public transportation construction processes in Turkey, says that their projects can be built “very, very quickly” and environmental reviews take as little as three months for public transit projects because they are fast-tracked as being a net benefit for the environment. But that’s partly because “they do it because they figured they have to” if they want to join the EU. In Italy, the process is handled almost entirely within the bureaucracy, said Marco Chitti, who works for the same research group. And the public comment period happens only after the environmental review is completed. At that point, there is not much anyone can do to stop the project. There is a broader acceptance in Italy—thanks to the way local governments are formulated through at-large elections where people vote for majorities in a region rather than a tiny district representative—that if the local politicians support a project, then it should happen because it has public support, and if the people don’t like it, they’ll vote the politicians out before the project is started.
There are certainly elements of the process the U.S. can learn from abroad. Expedited reviews for obviously environmentally sound projects sounds good in theory, although, as the recent compromise with Manchin suggests, there is far from political consensus on what constitutes such projects. Reforming the public comment process to be more efficient is also a great idea that doesn’t require any changes to NEPA or its basic principles.
But as with all reforms, the devil is in the details. And many of those details come back to the expectations and assumptions Americans have about our government. And this is where the trouble lies.
The fundamental question about NEPA is: Do Americans broadly agree on what we should be building? Do we trust the government to build the right projects in the right manner? If we did, we could let the bureaucracy do its thing in the background, tell us what it decides, and otherwise let the process take care of itself. If not, we feel the need to be involved, to harang, to press, to comment, to intervene, and to sue. And sure, we could devise ways to steamroll over that disagreement, but that would be curing a symptom, not the disease.
Unfortunately, Americans, broadly speaking, do not trust the government. According to OECD 2020 surveys, 46.5 percent of Americans responded “yes” to the question of “Do you have confidence in the national government?” (I was surprised it was that high.) In Canada 60 percent of the people do. Germany, 65.4 percent. The Netherlands, Denmark, Sweden, Finland, Norway, and Switzerland, all above 70 percent. It is likely no coincidence that these countries are also some of the most efficient and best at building infrastructure while also respecting the environment.
This is a Catch-22: People trust their government to build useful stuff when the government has a proven capacity to build transformative, useful stuff, and if it doesn’t, then people don’t give the government the permission, resources, or leeway to execute projects well, further eroding that trust. The U.S., for the past 50 to 70 years, is very much trapped in this trust death spiral.
Efforts to neuter NEPA will not break the cycle. It will, if anything, exacerbate it, as people tend to pay more attention to things they don’t like. And in a country of such wide-ranging opinions on what we should or shouldn’t be building, making review processes shorter will do nothing to solve any of these underlying problems. But it will ensure we make more mistakes, ones we can never reverse, and will one day regret. The things we don’t build are sometimes even bigger victories than the things we do.
“You can say we’re not going to do stupid stuff,” Wagner from Venable said. “But then, you know, the question becomes, who’s defining what’s stupid?”