by Greg Walcher, E&E Legal Senior Policy Fellow
The Daily Sentinel
In 1970 when President Nixon presented to Congress “Reorganization Plan No. 3,” no one foresaw the eventual result — some of history’s greatest environmental successes, and a virtual stranglehold on economic progress. America’s air and water are far cleaner today, automobiles emit virtually nothing, and many formerly polluted lands have been cleaned up. But the cumbersome procedures required for federal permitting have also led to delays, higher costs, and often killed projects and jobs permanently. Those impacts were never part of the plan.
The EPA was created by executive order, bringing under one roof dozens of programs from multiple departments. Simultaneously, Congress passed a procedural law called the National Environmental Protection Act (NEPA). For the first time, it required federal agencies to examine the environmental consequences of their decisions, and to take measures to prevent environmental damage. NEPA also specified procedures for that purpose, including publishing alternatives and seeking public comment before finalizing decisions. Since its passage in 1970, that “NEPA process” has been applied to virtually all major projects, at the federal, state, or local level, if they involved any federal funding, contracts, or permits.
NEPA also established the White House Council on Environmental Quality (CEQ) to advise the president on environmental policy and the state of the environment. In 1978, President Carter changed that, ordering CEQ to publish regulations governing how all agencies should comply with NEPA. But federal courts have now ruled that CEQ never had regulatory power, which only Congress could give it.
It is a pivotal issue because the NEPA process dictated by CEQ has become one of the greatest hindrances to economic progress. Agencies spend years analyzing, publishing, reviewing, and defending their work in court. They must decide between “categorical exclusions,” “environment assessments,” “environmental impact statements,” “findings of no significant impact,” or some other approach, and they get sued virtually every time. They hold public hearings, get thousands of public comments to which they must respond, and publish multiple documents throughout that process.
