“Another way to weaken the effectiveness of environmental legislation is to cripple enforcement activities.”
(Christian-Smith & Allen, Legal and Institutional Framework, “A Twenty First Century US Water Policy” p.35)
It’s been a rough year for environmental justice advocates.
A new administration in Washington is making good on promises made during its presidential the campaign; it is eagerly attacking state capacity, firing workers en-masse, and seeking to neuter or bypass existing procedural laws with potentially wide-ranging ramifications.
As economists, media pundits, and politicians argue over the relative costs and (supposed) benefits of trade wars, another argument quietly playing out could potentially reshape the foundations of American environmental justice law.
The Interim Rule:
“SUMMARY: This interim final rule
removes the Council on Environmental
Quality (CEQ) regulations implementing
the National Environmental Policy Act
(NEPA) from the Code of Federal
Regulations. In addition, this interim
final rule requests comments on this
action and related matters to inform
CEQ’s decision making.
DATES: This interim rule is effective
April 11, 2025. Comments are due by
March 27, 2025.”
-via the Federal Register (federalregister.gov)
NEPA & the Council on Environmental Quality
The National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., as amended (NEPA), is part of the foundation of modern American environmental justice law, serving as the “basic charter for the protection of the environment” according to its own language. The Act, which requires federal agencies to consider the environmental risks of federal projects, was enacted by Congress in 1969, and was signed into law by President Nixon in January 1970.
The Council on Environmental Quality, an office within the executive branch, was created alongside NEPA in 1969 and tasked with interpreting and assessing compliance to NEPA. Its role was codified in 1978, establishing specific regulations to comply with NEPA and formalizing the process of environmental impact statement review.
NEPA sets out the process of Environmental Assessment and Environmental Impact Review, while an office of the Executive Branch, the Council on Environmental Quality, was created alongside NEPA and tasked with enforcing NEPA. The council advises the president on environmental matters and arbitrates interagency disputes. Together with the Clean Air Act (1963, 1970) and Clean Water Act (1972), NEPA and the CEQ are effectively responsible for holding the Federal Government responsible for assessing and communicating environmental risks and impacts of major projects before they break ground. Importantly, NEPA also enshrined the precautionary principle by seeking to minimize the costs of reactionary environmental cleanup, which are typically far greater than those of proactive environmental stewardship, thereby safeguarding the health and safety of American citizens.
NEPA is not absolute; it contains multiple off-ramps for projects with national significance. The CEQ interprets NEPA guidelines and ensures compliance, as per President Carter’s 1978 Executive Order 11991, which established the procedures now under threat.
The Council on Environmental Quality recently circulated a draft resolution effectively neutering its enforcement of NEPA, bypassing the dreaded review process which has attracted the ire of advocates on both sides of the aisle lately. The Interim rule , 90 FR 10616, is available for public comment until it takes effect on April 11th, 2025. Despite almost no media attention, it quickly attracted over 108,000 impassioned and angry comments from members of the public before public comments were closed.
19 attorneys general, led by AG Nick Brown of Washington, have publicly opposed the Interim Rule which would effectively bypass NEPA. Their joint letter, written together with AGs from major states including New York and California, argues that the “interim final rule violates the Administrative Procedure Act, Endangered Species Act, and NEPA. ”. The letter points to the potential injury suffered by residents due to environmental degradation, and asserts that the Interim Rule, “The Repeal,” “harms the states,” “is arbitrary and capricious,” “fails to conform to requirements for APA notice and comment rulemaking,” “is contrary to the law,” “violates NEPA,” and “fails to comply with the Endangered Species Act.” The letter further objects to the unusually short 30-day timeline for public comment.
With little public fanfare, the Trump administration has quietly unsheathed a dagger aimed at the heart of environmental review, the latest in a series of lawfare campaigns designed to defang enforcement of NEPA and hobble the CEQ’s enforcement capacity. Conservative groups, including the Heritage Foundation, have long decried the often cumbersome and litigious process of public accountability and environmental impact assessment demanded by NEPA, and have called for it to be repealed. The Administration simply bypassed it, effectively rendering NEPA moot.
NEPA mandates that projects involving federal agencies apply the precautionary principle in considering potential environmental impacts of a given project and sets out mechanisms for enforcement by the CEQ. While NEPA and the Council are codified in law, staffing, funding, and enforcement powers are effectively in the hands of the executive branch.
NEPA’s proactive approach is ultimately more efficient and cheaper than seeking to remedy an incident after the fact as under a reactive approach. Its review process ultimately ensures lower costs and better safety outcomes over the long term, but adds time and cost to projects under consideration. Recently, such environmental review has come under fire from both sides of the aisle, blamed for everything from the national housing shortage to cost-of-living increases and the exodus of young workers and families from coastal cities to the Sunbelt.
Following a bout of high inflation and double-digit increases in the cost of living in the wake of the COVID-19 Pandemic, the American consumer is stressed. People are fleeing the heavily Democratic coasts for cheaper sunbelt states. Free marketeers loudly clamor about the role excessive regulation plays in constraining the supply of everything from housing to renewable energy. Environmental review can add time and cost to many projects, even those environmental justice advocates support, but such criticism often willfully overlooks other contributing factors, most notably the lack of government capacity following decades of austerity, offensive legal actions waged by the fossil fuel lobby, and a rise in anti-environmental sentiment within wealthy and influential circles in Washington.
Environmental justice advocates will respond by arguing that a century of redlining and often racially tinged exclusionary zoning and exclusive covenants play as much, if not more, of a role in artificially constraining housing supply, and thus inflating the new equilibrium point for this most essential good. Both may have a point, as Ezra Klein and Derek Thompson argue in their new book, Abundance.
Environmental assessments and environmental impact statements as mandated by NEPA can inflate the cost to build projects, and delays in the process can add years to project timelines. Professor Michael Gerrard, in his editorial A Time for Triage, freely admits that these can and do constrain the buildout of a supply-side green infrastructure, imposing additional costs and regulatory burden on renewable power projects, to name just one example.
Among “abundance” thinkers on both the left and right, environmental review has emerged as a convenient scapegoat, papering over issues like urban planning, car-centric development, or federal transportation apportionments that heavily favor automobiles to the exclusion of public transit.
It’s no wonder, then, that housing advocates, renewable energy champions, and “drill baby, drill!” wildcat frackers can all agree on one thing: nobody likes environmental review. That doesn’t mean it should be done away with entirely. Even the foremost advocates of Environmental Justice freely admit that the EIS process codified under NEPA can act as a constraint on building housing and renewable power, but it exists for a very valid and important reason. We should remember that NEPA contains existing mechanisms to address public needs while accounting for the cost of meeting those needs. NEPA is a vital part of informed decision-making; it does not prohibit development; it merely considers the impact of development on the commons in the interest of public health and safety. Applying the precautionary principle is far cheaper in the long run than seeking to remedy a concern once it’s built.
It’s important to remember that NEPA can be reformed. According to analyses developed by economists like Daron Acemoglu, the critical problem standing in the way of fast turnaround time comes down to a lack of state capacity, not an excess of it. Agencies tasked with administering programs, including even the CEQ, often cope with a lack of sufficient qualified personnel or modern technology, hamstringing even the most competent bureaucrats. Government can be efficient if we allow it to be. We must first agree that it’s worth saving.