For decades, the National Environmental Policy Act (NEPA) has drawn attention—and criticism—for its tendency to create roadblocks to U.S. infrastructure and energy projects. Many see NEPA as little more than a regulatory hurdle that stymies economic development. While there is much that is true about this narrative, there is another side to this story. Strip away the layers of red tape and litigation, and NEPA offers a model for how government procedures can foster better decision-making and ultimately serve the public interest. By focusing on three pillars—analysis, oversight, and judicial review—NEPA provides a blueprint for what “technocratic governance” could look like.
NEPA’s Procedural Foundations
NEPA is first and foremost a procedural statute. It does not set substantive environmental standards. Rather, it compels federal agencies to go through a formal process of environmental analysis, culminating in the production of an environmental impact statement. This requirement is premised on the idea that agencies left to their own devices will not rely on expertise in their decision making. Instead, they will prioritize their own agendas, budgets, and internal politics over the public good. In mandating that agencies conduct environmental analysis, NEPA’s procedural approach ensures that federal agencies can justify their decisions and that policy is at least partly shaped by data and analysis.
NEPA also establishes an oversight body in the form of the Council on Environmental Quality (CEQ). The CEQ issues guidance and assists agencies in developing procedures to ensure they comply with NEPA’s requirements. Having this third-party oversight addresses the reality that, without independent monitoring, agencies will likely be guided by factors like institutional inertia or their own ideological agendas rather than the law’s intent.
Finally, NEPA creates a strong role for judicial review. By enshrining its requirements in statute, NEPA enables courts to invalidate federal actions if agencies fail to comply with the law’s procedural mandates. This judicial backstop is another means of ensuring federal agencies take NEPA’s requirements seriously.
Where NEPA Falls Short
Despite these virtues, NEPA has many failings. Chief among them is the statute’s “default setting.” NEPA is “upside down,” in the sense that the burden of proof is placed on those issuing permits. By default, private parties are restricted from moving forward with beneficial development projects unless and until federal agencies have met a high bar of analysis. This bar should be reversed. The government should face a high burden of proof when restricting commerce and development, not when permitting it.
NEPA can be made “right side-up” by reversing this default setting. Permits should generally be issued without much hassle. In those cases where a permit is denied, the government should have to demonstrate, in a transparent manner, how the denial is soundly based on evidence. Denials should require strict evidence of harm, be subject to third party confirmation, and offer opportunities for judicial review.
NEPA’s other fundamental shortcoming is its vagueness. While the statute prescribes a process, it is not clear what that process entails in practical, day-to-day terms. This uncertainty has led to voluminous environmental impact statements that stretch beyond what many believe is reasonable or efficient. Agencies feel they have to cover every conceivable outcome or contingency in their analysis, because Congress never specified when “enough is enough.”
The Three Pillars of Technocratic Governance
NEPA’s three core elements of analysis, oversight, and judicial review comprise what might be called “the three pillars of technocratic governance.” Think of them as three legs of a stool. If any one is missing, the stool cannot stand.
Analysis: Good policy demands thorough analysis grounded in expertise and evidence. NEPA requires agencies to gather and evaluate facts, predict outcomes, and consider alternative approaches before making a decision.
Oversight: Even the best analysis can be compromised by organizational biases or political agendas. Having a neutral (or at least semi-independent) body like the CEQ ensures that agencies’ work can be reviewed and challenged from the outside, improving the quality and consistency of the analysis and accompanying methods.
Judicial Review: Courts play a critical role when oversight and internal checks fail. If agencies produce bad science or arbitrarily ignore evidence, affected parties can bring lawsuits to hold them accountable. Judicial review encourages agencies to be meticulous in their analysis and transparent in their reasoning.
NEPA’s procedural design is one of its strengths, not a flaw. It compels agencies to do their homework, allows for independent oversight, and empowers the public to seek legal remedies when the government falls short. Its fundamental flaw is that it defaults to limiting freedom rather than permitting it. It exacerbates a preexisting market failure by making the problem of underdevelopment worse and not better. As a result, too many good projects fail to navigate the procedural gauntlet.
Lessons for Regulatory Reform
NEPA’s guiding principles can serve as a template for ensuring that agencies do not impede economic freedom without a solid justification. Consider that in most instances, governments can issue new regulations without needing thorough, independently vetted analysis subject to judicial oversight. Imagine if regulators were held to a similarly high evidentiary standard as permit issuers. It is highly likely we would see better outcomes from regulatory policy.
NEPA is still far from perfect however, and it can be improved upon in a regulatory context in the following ways: First, NEPA’s focus on environmental outcomes is too narrow. There are many other outcomes from policy that are equally if not more important. Regulations should require a cost-benefit analysis, which in theory is far more comprehensive and useful than a NEPA analysis. Second, the law should explicitly require agencies to use the results of their analysis in the decision-making process, preventing analysis from becoming a mere box-checking exercise. Third, Congress should clearly define what constitutes a thorough and complete analysis, giving courts a clear set of standards to use when evaluating an agency’s compliance.
As Washington considers revising NEPA to address its very real and significant shortcomings, it is critical not to lose sight of the statute’s virtues, which, if applied in other contexts, could lead to a considerable amount of good. Yes, NEPA’s requirements are unwieldy, and the process is exploited by those determined to block projects. But the concept of a thorough, evidence-based process for government decision-making is sound. Ultimately, we need to flip the burden so that government, rather than private citizens and businesses, carries the onus of proof for restricting liberty.
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