Beware Zombie NEPA

The SPEED Act, sponsored by Rep. Bruce Westerman (R-AR) and Rep. Jared Golden (D-ME), is a good start at National Environmental Policy Act (NEPA) reform. It takes on the root causes of NEPA’s dysfunction, including the litigation that drives extended NEPA timelines. Whereas Rep. Westerman’s 2024 discussion draft bill on the same subject felt scattered, the SPEED Act is focused and assembles an interlocking set of coherent reforms that elegantly disables NEPA.

But disabling NEPA is probably a bad idea. Although we need a NEPA overhaul, defanging it might be worse than leaving it fully intact. By closing off avenues for public participation at the federal level, the bill would risk pushing public opposition into local and state venues. Once there, federal authorities have less ability to mitigate those conflicts and may not even know about them until it’s too late. Contrary to its name and the authors’ intent, the SPEED Act might slow project deployment.

In addition to backfiring when it comes to expediting infrastructure construction, the SPEED Act may also create a new source of uncertainty for developers and agencies. By defanging NEPA in the short-term, the SPEED Act leaves open the possibility that future administrations—who may have more or less interest in reducing NEPA’s burden—will bring NEPA back from the dead and recreate the arduous environmental review drafting cycles that the SPEED Act aims to solve.

NEPA needs to be reformed, but it should not be either destroyed or “zombified.” Reforms must surgically curtail judicial review while enhancing the federal government’s ability to head off project opposition through early, meaningful public engagement. The SPEED Act is a positive opening salvo from one pole of the permitting reform debate, to be sure. A final product, however, must recognize that incorporating meaningful public feedback at the federal level is the surest path to making reform sticky and effective. In our labyrinthine federal system, we can’t just lobotomize NEPA.

How the SPEED Act would lobotomize NEPA

The SPEED Act is not a NEPA repeal. But its provisions could accumulate into an effective repeal by kicking out key pillars that ensure agency compliance and public engagement.

The bill’s most direct attack on NEPA would prevent courts from stopping projects under any circumstances. The text and its effects are hard to parse. But as written, a court couldn’t stop a project once an agency completes the NEPA process and issues a Record of Decision. Courts could only send an environmental review back to an agency with instructions about how to improve it. And the agency would have 180 days to make those improvements. But the underlying decision would remain in effect, and the project would proceed.

An agency could do an inadequate NEPA analysis (or none at all), issue a Record of Decision with its preferred course of action, and the court couldn’t stop the project. In this system, an agency would have no incentive to conduct NEPA reviews. On the contrary, enormous pressures would work against conducting adequate reviews. Agencies could opt out of all the messiness of public engagement, rigorous study, and politicians’ complaints. And then they'd issue a decision, facing no legal consequence aside from a court demanding they do more work, a request they could ignore with impunity while the project moves ahead. Maybe some agencies would still do NEPA for practical reasons. But with the Trump Administration, which is already punching through the floor of NEPA’s historical requirements, it's hard to believe that would happen. Under the SPEED Act, NEPA could become cosmetic.

The bill has more attempted kill shots. The SPEED Act would only let a plaintiff sue on an agency NEPA review if that plaintiff had written a detailed comment to the agency during the NEPA process and could demonstrate harm. But ever since the Trump Administration tossed CEQ’s NEPA regulations, the only time an agency is required to take public comment is when it announces the project. Historically, this announcement comes well before an agency collects and publishes detailed environmental impact information. How then would a potential plaintiff have enough information to give a detailed comment?

This also sets up perverse incentives for an agency. It could avoid lawsuits by announcing barebones—or no—project information. The public would have no way of knowing the impacts and so no way to comment on them. An agency would then have it within their discretion to reduce to zero the number of people who could sue them.

The SPEED Act issues a third near-fatal wound to NEPA by limiting the data agencies are required to consider when drafting its environmental impact statements. As written, an agency would not need to consider any scientific or technical information that didn’t exist at the time the project proponent applied for NEPA review. In turn, an agency would be NEPA-compliant even if it didn’t acknowledge or respond to anything the public says in the comment period (assuming it was arguably scientific or technical in nature). So much for NEPA’s public engagement function.

A zombie NEPA is not a dead NEPA

Killing NEPA this way would be bad. But that's partly because it wouldn't really be dead.

A real and very important critique of NEPA is that its extended drafting process and the threat of litigation make the outcome and timing uncertain. This raises risks for developers and financiers, making it harder for projects to get off the drawing board, much less built. This is particularly hard on smaller contractors who don’t have the capital to wait for permits. That’s the province of larger companies and is one of the ways NEPA helps to concentrate market power. The SPEED Act’s sponsors, admirably, want to eliminate that uncertainty.

But the SPEED Act subjects the NEPA regime to a new type of uncertainty. At least with a full repeal, you’d expect agencies to never do NEPA again. There would be no NEPA. But the SPEED Act would leave a form of zombie NEPA in place that a subsequent NEPA-loving Administration could revive. So every four years, a Democratic President might revive rigorous NEPA analysis through political control of the agencies, only to have agencies retreat again when a Republican President takes over.

One can hardly imagine a reform more destabilizing than functionally turning the law on and off every four or eight years with hundreds of reviews potentially underway.

Killing NEPA might make it harder to build

The problem with killing NEPA is, ironically, we probably need it to build big projects in the national interest. One of NEPA’s core functions is to engage the public on their concerns. Among other salutary effects, this process surfaces and concentrates public opposition in a forum that’s within the federal government’s power to address.

But the federal government is just one potential veto gate for large infrastructure projects, and maybe not even the most threatening. Arguably, more problems arise at the local and state level, particularly with linear infrastructure like transmission and pipelines, each of which is subject to forms of state or local veto.

Indeed, in the fifty or so years since Congress passed NEPA, the various layers of American government have become enormously adept at stopping projects. And this success at stopping projects does not have a reliable partisan pattern. Republican states have stopped transmission lines and carbon pipelines using political pressure or prohibitions on taking farmland. Zoning laws, state versions of NEPA, historic preservation laws, an array of organizations in both red and blue states—some ad hoc, some of long standing—work against projects with a cacophony of ‘no’s.

If the SPEED Act succeeds in stifling public opposition in the federal NEPA process, that opposition will just move to other venues—city councils, state legislatures—beyond federal influence. But because the federal agency in charge didn’t take or respond to public comment, the inevitable opposition, once surfaced, could blindside project developers after the project is baked.

Moreover, the easiest path to placate project opponents occurs early in the review process when an agency or developer has taken fewer path-dependent decisions. Under the SPEED Act, agencies could eliminate this feedback loop by functionally eliminating public comment. But public comment often plays an important role improving projects and reducing friction with the public in venues besides NEPA. Destroying this feedback loop would blind agencies to potential fixes, possibly until it is too late to make them, thus making the inevitable public grumbling more acute and difficult to resolve. And the federal government would have few or no options for influencing public opposition after it lands in local and state venues.

While the underlying purpose of the SPEED Act is to do projects faster, it runs a meaningful risk of relinquishing federal influence over whether projects start at all. The SPEED Act may thus confer speed in name only.

Our federal system is a well-known patchwork of authority. Local and state governments have countless ways to thwart infrastructure development. Within that context, a better NEPA bill would limit but not totally eliminate judges’ ability to stop projects when an agency fails in its NEPA obligations. Such reform should also retain a meaningful forum for the public to identify problems and find collaborative solutions. This combination of measures would free agencies to right-size their environmental analyses without the threat of judges’ nit-picking agency judgments. But agencies would still need to hear out the public and, when warranted, adjust project plans.