Why Did NEPA Peak in 2016?

Analyzing data on the boogeyman of environmental law

The National Environmental Policy Act (NEPA) is a 1970 law which requires all federal agencies to “prepare detailed statements assessing the environmental impact of and alternatives to major federal actions significantly affecting the environment.” The exact definitions of ‘detailed,’ ‘major federal actions,’ and ‘significantly affecting the environment’ have been hashed out over thousands of court cases where usually an environmental protection group like the Sierra Club will sue a federal agency for not being careful enough in their assessment.

Bureaucratic and judicial rulemaking have clarified that NEPA applies to any activity or decision that a federal agency spends money on or issues a permit for. The ratcheting precedent and litigation pressure have made these environmental reports costly and time consuming. The top level of NEPA compliance, environmental impact statements, routinely take more than 5 years to complete.

NEPA has a lot of enemies and it deserves them. Whenever there is a gobsmacking budget or eternal timeline for a construction project that would have been easy 100 years ago, there is a multi-thousand page NEPA report which shoulders much of the blame.

It can often feel like NEPA is impossible to change. NEPA has chewed through the political capital of dozens of reform movements over the past several decades without much trouble. This graph from the National Association of Environmental Professionals shows that as each year passes from 2000-2017, environmental impact statements take a month longer to complete. The reform efforts during the Bush and Obama administrations don’t seem to make a dent. In 2017 the average EIS took about 1800 days or 5 years to complete, with many EISs taking over 10 years or never finishing at all.

A Light at the End of the Tunnel

The last time the National Association of Environmental Professionals posted this graph was in 2018. They still post tables of data, but they’re spread across several PDFs. I collected that data to check up on this graph and update it to 2022.

Since 2016 there has been six years of significant decreases in the time it takes to complete an environmental impact statement. They haven’t been this quick since 2011!

So after decades of getting worse and worse, NEPA may have finally turned a corner. But what explains this change?

The FAST Act of 2015

Buried deep in the massive omnibus budget authorization bill for the Department of Transportation, there is a section of “Federal Permitting Improvement” provisions. There are three main changes here.

First, it creates the Federal Permitting Improvement Steering Council. Any energy infrastructure project which will cost over $200 million comes under the authority of this council. The council has a deadline of 180 days to complete environmental reviews for the projects they oversee, they coordinate all of the involved agencies to avoid redundant work, and they have employees who help the agencies complete their review documents on time.

Next, the FAST Act eases litigation pressure on environmental reviews in several ways. It shortens the statute of limitations from six years to two years, limits the pool of litigants to people who submitted detailed comments on the issue they are suing over when the EIS was in its draft period, and requires that courts consider the negative impacts of shutting down a project when they decide a case.

Finally, the Act establishes an online permitting dashboard where timelines are tracked and agencies can coordinate.

Caveats

It’s not certain how much credit the FAST Act should get for reducing NEPA timelines. All of the decrease in the timeline is coming in-between the Notice of Intent (when agencies publish their plan in the Federal Register) to the Draft EIS (when agencies open up the EIS to comments). So it might be that the FAST act is just pushing agencies to publish the Notice of Intent later in the preparation process.

Another important trend in the data is that the total number of EISs completed has been falling precipitously along with the time to complete them. In 2012, 197 final Environmental Impact Statements were published. Ten years later in 2022 there were only 83 with a clear downward trend throughout the whole period. In 2022 each EIS took about the same amount of time to complete as in 2012 but less half as many were completed.

If the FAST Act made environmental reviews less burdensome we would expect them to be quicker and more common. Quicker reviews but fewer of them suggests that the true burden of the reviews is being hidden or that federal agencies are being more selective with the projects that they even attempt to environmentally review, to avoid failing the deadlines set in the FAST Act.

More optimistically, the low numbers of EIS completions might just reflect the NEPA pessimism at its peak burden in 2016. The graph shows that the average EIS completed in 2021 took about 5 years to complete. That means the average EIS completed that year was started in 2016 when EISs were at their worst. Maybe as time goes on we’ll see the EIS numbers increase as federal agencies realize that the FAST Act provisions really are making the environmental review process less burdensome.

NEPA is a longtime enemy of progress-minded folk. Any chink in its armor like the turnaround in 2016 is worth investigating further. But despite the encouraging trend reversal we saw on the graph, it doesn’t seem like NEPA is getting unambiguously better.