President Richard Nixon signed the National Environmental Policy Act on New Year’s Day in 1970. The law responded to demands for broad environmental analyses for major federal projects. Environmental concerns, such as a burning Cuyahoga River, fueled its overwhelming passage by Congress. NEPA, as initially drafted, made sense. Since then, however, NEPA has undergone a metamorphosis at the hands of courts and bureaucrats to the point where the original drafters would no longer recognize or support how the law is used today.
The original concept, requiring federal agencies to identify significant environmental effects for major projects and consider public comments, was a step in the right direction. It helped improve projects and obviate disasters. Arguably, the trans-Alaska pipeline was successfully completed, with thoughtful wildlife protections, sensible efforts to mitigate environmental concerns, and superior engineering, all because NEPA was applied appropriately.
Congress wasn’t seeking to enable every dubiously related, specious, or conceivable effect to be litigated by interest groups (or, for that matter, to put taxpayers on the hook for their legal expeditions). Sadly, what was once a hallmark of American policy ingenuity is now no more than a tool for stalling progress. Poverty has never been good for the environment. Without commerce and industry, our economy falters.
The United States has changed significantly in the past 55 years. America’s progress and historic ambition have made us the envy of the world in science, our care for the environment, our economy, and technology. We have done well because we met challenges with innovation and acumen. Historically, NEPA was part of that success, but more recently, politically driven agendas have used NEPA to stymie advancement for speculative conservation merit or narrow ideological purposes.
Wyoming has its fair share of egregious examples of pernicious NEPA creep. Grizzly Bear populations have recovered, but delisting remains elusive. The Bureau of Land Management’s Rock Springs Resource Management Plan, future coal leases, a Chokecherry/Sierra Madre wind farm transmission line, and oil and gas sales all have fallen prey to political agendas.
Being mired in indefinite litigation serves no one. Circumstances change with time, and thus, work that could be done is often held up to a point where the original analysis may no longer be relevant, prompting an endless cycle of perpetually irrelevant analysis. Because of what happened to NEPA, important planning documents are perpetually outdated and filled with stale science. Accordingly, final Records of Decision are often flawed, deficient, and lacking. Responsible and timely conservation suffers as a result.
Too frequently, a change in presidential administrations can spell the life or death of specific projects or policies, and the dagger we see before us is too often a new interpretation of NEPA. The regulatory uncertainty that whipsaws local governments, companies, and organizations with every election cycle is not conducive to investors or our natural world. The funding that underpins so much of our good conservation work dries up, as do local communities when the economy fails.
All analyses and projects should be under equal scrutiny and have the same opportunities for approval. Therefore, states can shoulder more of the NEPA analysis and review.
State agencies have unique, local expertise on their watersheds, biomes, and stakeholders, and in many cases, they have primacy or authority over wildlife, air, and water quality. States tend to be efficient and judicious in their use of limited federal resources and endeavor to conduct NEPA reviews expeditiously. They are closely invested in project success and in maintaining a robust, healthy environment. Decisions crafted by a government closer to the people it serves are often more informed and durable than those made primarily in D.C.
I am not advocating full-sale abdication of federal NEPA obligations. Far from it! A federal nexus (but more than just federal funding) must remain to trigger the NEPA process. A reasonable federal guidance framework should be established, providing that when a federal agency is unable (or unwilling) to conduct a timely NEPA review, that review is delegated to the state. When a state completes the NEPA analysis, the federal government should ratify it and defend it, if necessary, properly and fully.
MIKE LEE NARROWS CONTROVERSIAL PUBLIC LAND SALE MEASURE
States such as Wyoming already have a robust process for responsible development, both for siting major industrial projects and promoting responsible protections of our natural resources. By combining state and federal efforts, decision-making and environmental policy become more aligned and better reflect the site-specific concerns where these developments are located. By offering a backstop, timely execution of the responsibilities embodied in NEPA analyses becomes more likely, and decisions become more pertinent.
NEPA is far more valuable as it was originally conceived than as it has become today. To borrow Teddy Roosevelt’s words, NEPA is about development as much as it is preservation. It’s time we cured the system. State governments are uniquely suited to efficiently and intelligently manage much of NEPA. That will benefit our economy, our people, and our environment. It’s time to let them do so.
Mark Gordon is the governor of Wyoming. He grew up on a ranch in Kaycee, Wyoming, and operates a working family ranch. He served as state treasurer and Class B director of the Federal Reserve Bank of Kansas City.