The National Environmental Policy Act (NEPA) is among the foundational environmental protection laws in the United States, and it is under unprecedented attack from the Trump Administration.
Scientific rigor, transparency, Environmental Justice, and deliberation are fundamental to good government and can only be achieved through a robust NEPA process. As the current administration moves to gut the law, at the behest of extractive industries seeking to maximize profits, Congress and the US public must come to its defense.
A simple premise: productive harmony
Despite rhetoric from the oil, gas, and mining industries, NEPA is not complicated. The original statute stands for two basic propositions:
- Before a federal agency funds or permits something with significant environmental impacts, it should consider alternatives, including no action at all; and
- Before the agency makes the final decision, it should invite input from the people who will have to live with the consequences.
Section 101 of the statute states the aim of the law even more simply: “to create and maintain conditions under which [people] and nature can exist in productive harmony.”
And yet, the idea that potential impacts on people in surrounding communities should be considered before any significant federal action is taken was novel when NEPA was signed into law by President Richard Nixon in 1970. Much of US history is marked by unbridled resource extraction and rampant pollution from industrial development, with little or no consideration of the consequences to our air, land, and water.
And if the idea of environmental protection was new, the concepts of government transparency and public input were downright radical. NEPA stands for the proposition that even the most powerful federal agency should have to at least consider the views of average members of the US public before charging ahead.
After complying with NEPA’s requirements, however, that agency can still charge right ahead. The statute dictates a process, not an outcome, and the federal government can decide not to abide by the most environmentally conscious alternative.
As the Supreme Court explained in 1989, “NEPA merely prohibits uninformed–rather than unwise–agency action.”
The NEPA process is intended to take place concurrently with all other aspects of planning and implementation of a project. If project proponents go back to the drawing board a few times, or experience funding delays, or run afoul of the Clean Water Act or Endangered Species Act, that all takes place during the “NEPA process.”
This parallel structure has been manipulated by NEPA critics, who are eager to use anecdotal evidence to erroneously blame NEPA for project delays of years or even decades. Most experts agree that, given the various exemptions adopted over the years, size of the federal regulatory docket, and federal agency’s organized strategies to evade the statute, the allegations that NEPA stifles progress are overblown.
The state of play
Watching NEPA implementation recently has been like watching tennis. The Obama Administration sought to expand NEPA consideration of greenhouse gas emissions, among other changes, but then the first Trump Administration sought to truncate application of the law. The Biden Administration reversed the Trump guidance, but then Congress narrowed the statute somewhat in the 2023. The Biden Administration then worked to implement the changes, along with some improvements to the regulations. Central to efforts to update NEPA by the Obama and Biden Administrations was the seemingly obvious idea that a process designed to assess environmental impacts should account for pollution that would worsen climate change.
Most recently, under the guise of an “energy emergency,” the Trump Administration has sought to repeal existing NEPA regulations and guidance, leaving individual departments and agencies to develop their own requirements for complying with the statute. In March, UCS joined 250 organizations in a comment letter on this action. As the letter made clear, “NEPA’s foundational premise is that full governmental transparency must be coupled with robust public participation to ensure federal agencies fully inform the public, and that agencies, in turn, are fully informed by the public, of a proposed project’s social and environmental costs and benefits.”
Secretary Burgum announced in April that the Interior Department would cap the review period for certain energy leasing applications, including those for oil, gas, coal, and uranium, at less than one month. Apparently, the first project to be fast-tracked will be the reopening of a uranium mine in Utah closed in 1984. Agriculture Secretary Rollins has announced similar plans to truncate NEPA review for federal timber sales. Uranium mining and clear-cutting national forests are exactly the kinds of activities that may provide short-term windfalls to private companies, while leaving local communities with devastating long-term impacts. Projects like these require more deliberation, not less.
“Red tape” is a red herring
One good way to watch tennis is to keep your eye on the ball. “Cutting red tape” or “streamlining” usually means cutting corners and cutting the public out. Deliberation and public participation are central to the NEPA process and any change to the statue or its implementation designed to “speed things up” often come at the expense of these fundamental goals.
NEPA was considered progressive in 1970, but its authors could not have known just how visionary the law really was. There is no better planning tool for coordinating a federal response to the climate crisis, or redressing decades of environmental racism, than NEPA. The goal of productive harmony between people and nature still seems both worthy and remote, particularly as millions of people suffer through yet another climate-fueled Danger Season.
The Trump Administration plan to destroy NEPA is dangerously wrong. Federal agencies need better funding, staffing, and training to engage in NEPA work more effectively; new short-cuts, time-limits, exemptions, or statutes of limitations are not in the public interest.
All infrastructure and energy development in the US since 1970 has occurred pursuant to NEPA. The law is not a barrier to development; it is a shield against reckless and unjust federal action. The only entities who benefit from undermining NEPA are special interests who reap a short-term windfall when federal agencies leap before they look. The only reason to curtail NEPA would be to let those windfalls happen.