NEPA is in Colorado News – What is it?
In Colorado today, the National Environmental Policy Act (“NEPA”) is in the news. There are two matters. One is Denver Water’s Gross Reservoir expansion project that is currently under construction in Boulder County. A federal judge ruled that the Army Corps of Engineers violated NEPA when it granted a permit for the construction. You can read about that here. The other is the Uinta Basin Railway – a proposed railway in western Colorado for the primary purpose of transporting crude oil. This case is before the United States Supreme Court on the issue of whether the Surface Transportation Board violated NEPA when it approved of the project. You can read about that here and here.
So, what is NEPA? Passed in 1970, NEPA is a federal statute that among other things requires federal agencies to consider the environmental impacts of “major” federal actions that “significantly impact” the environment. Usually the “federal action” is an agency approval of a proposed project, such as issuing a permit to build a dam. Thus, NEPA is 100% procedural. It does not regulate pollution like the Clean Water Act or the Clean Air Act. It does not protect endangered species. It does not prohibit the federal government from taking any specific action that would harm the environment. The United States government could decide to resume nuclear weapons testing on islands in the Pacific Ocean. NEPA says fine, as long as the environmental impact is adequately studied. Also, note that the agency doing the environmental analysis (which could cost several million dollars) has no duty to do anything with it – only to create it. As explained below, the environmental “protection” comes via litigation over NEPA. So, it would be wrong to say that NEPA “protects” the environment, at least not directly.
Depending on the degree of impact, federal agencies will comply with NEPA by creating an Environmental Impact Statement (“EIS”), which is a full-blown environmental review that can take years. Alternatively, agencies will create a less in-depth Environmental
Assessment (“EA”) to support a finding of no significant impact (a “FONSI”), or decide that the action is not significant enough under its own NEPA regulations to warrant any NEPA analysis (known as a “Categorical Exclusion”).
Despite being “merely” procedural, NEPA has become a primary tool for litigants to stop or delay controversial projects, such as mines and infrastructure improvements. The lawsuits allege a failure to comply with NEPA. Usually the “failure to comply” is an inadequate EIS, or doing an EA rather than an EIS. For large or controversial projects, a NEPA challenge is almost guaranteed. If the plaintiffs win, then the agency’s associated action becomes invalid and it is back to the drawing board, at least to some extent. If the agency attempts to fix the NEPA problems, they face another potential NEPA lawsuit – a feedback loop of sorts. Thus, NEPA litigation can be very effective to delay or even completely stop a project.
One would think that after decades of regulations implementing NEPA, litigation over what NEPA means, and the knowledge that a NEPA lawsuit is likely, federal agencies today would generate EISs that hold up in court. This is wrong. NEPA challenges succeed often. Denver Water’s Gross Reservoir expansion project is an example. One reason litigation continues to be successful is the fact that federal courts are continuously interpreting and refining what the federal agency must study as part of an EIS. The Uinta Basin Railway is an example – the Supreme Court will decide whether an agency must consider environmental effects that are far-removed from the agency’s decision. In the case, the Surface Transportation Board approved the proposed railway for transporting crude oil without considering the environmental effects of refining the oil to be carried – something the agency has no control over.
Because NEPA is used to derail projects, the law itself is quite controversial. An example of arguments against NEPA can be found here.