For over half a century, the National Environmental Policy Act has dictated how new infrastructure projects, including pipelines, highways, and transmission lines, can receive federal permits critical for starting construction.
The bedrock environmental rock law has become the center of debate in Washington, as lawmakers on both sides of the aisle seek to speed up and simplify project developers’ obtaining federal approvals.
Recommended Stories
- DOJ arranges for energy companies to remove uranium waste from Navajo land
- EPA ends four union contracts in line with Trump executive order
- EPA to end updates to climate emissions database after suspending its creator
While supporters of the 55-year-old law say it is key to avoiding the endangerment of public lands and wildlife and curbing climate change, critics claim it does more harm by acting as red tape and slowing domestic infrastructure development, including for clean energy projects.
So, what is this law and why have proposed reforms become so controversial? Here are the facts.
History of NEPA
The National Environmental Policy Act, better known as NEPA, was signed into law by President Richard Nixon in 1970.
The legislation, first introduced by then-Senator Henry “Scoop” Jackson (D-WA), was driven by growing public concern over environmental degradation caused by the rapid industrialization and urbanization after World War II.
NEPA is widely considered the first major environmental law in the United States and has often been described as the “Magna Carta” for environmental laws and federal regulations enacted in the decades since.
The law requires all federal agencies to consider and review the environmental effects of proposed projects requiring federal approval.
“Before this law, there really wasn’t anything that required an evaluation of environmental effects in general,” Neal McAliley, a Carlton Fields attorney specializing in environmental law, told the Washington Examiner. “Unlike other laws like the Endangered Species Act or Clean Water Act, or various other laws that may affect federal decisions, this one is broad brush.”
He explained that laws like the Endangered Species Act or the Clean Water Act are focused on listed species or certain types of land.
“NEPA asks everything,” McAliley said.
Federal agencies are required to issue environmental assessments or environmental impact statements for certain projects and are also mandated to hold public comment periods on proposed actions to review their environmental effects.
These documents are only required if a federal agency determines the proposed project does not qualify as a “categorical exclusion” from a more detailed environmental analysis. An EA is first prepared to determine whether the project has the potential to cause significant environmental effects. If there are none, a “Finding of No Significant Impact” will be issued. If there are significant environmental impacts, an EIS follows.
The EIS generally pertains to large-scale developments like the construction of airports, highways, dams, pipelines, as well as significant changes to existing facilities, such as expanding mining operations. An EIS is far more detailed than an EA, requiring details on the affected environment, environmental consequences, alternatives to the proposed action, and including a public comment period. EISs regularly take years to complete and run into the hundreds of pages.
As these documents precede any formal approval issued by an agency on a proposed project, they have widely been considered to drive the entire federal permitting process.
Failed attempt to reform
NEPA has served as a crucial tool for opponents of any infrastructure development to block proposed projects.
Individuals and groups opposed to projects like highways, power plants, or transmission lines have been able to engage with the law and file a claim for years.
It doesn’t matter if the claim is very weighty. Challenging the project through NEPA can result in years of litigation, cost developers more money, and potentially lead some to scrap the project altogether.
Critics, most notably Republicans, have pointed to extensive litigation associated with some NEPA actions, saying it has hindered years of infrastructure growth. Even more liberal-leaning climate advocates in Congress, like Sens. Brian Schatz (D-HI) and Tom Carper (D-DE), have worked to limit litigation delays within the permitting process to accelerate clean energy deployment.
In recent years, members of Congress across the aisle have attempted to reform NEPA and broader permitting procedures but have failed to reach a bipartisan consensus.
Most recently, House Natural Resources Committee Chairman Bruce Westerman attempted to push through reforms during the last Congress. He primarily worked alongside Sen. John Barrasoo (R-WY) and then-Sen. Joe Manchin (I-WV).
Discussions lasted for months and did not initially include reforms to NEPA, but Westerman led the effort to include it in the final package. At the time, Democrats accused their Republican colleagues of attempting to gut the bedrock law and limit public feedback. Talks ultimately broke down in December.
Supreme Court’s input
Efforts to speed up the permitting process through NEPA have even reached the Supreme Court.
The conservative-leaning court placed new limits on the environmental law in late May, ruling that courts should narrow the scope of reviews required by NEPA.
In an 8-0 ruling, the Supreme Court said these reviews should only be limited to the direct environmental effects of projects, and not consider broader downstream effects.
The decision overturned a lower appeals court ruling that favored environmentalists who accused regulators of failing to assess risks to the broader environment involved in constructing an 88-mile rail line in Utah that was designed to transport crude oil.
The lower court ruling determined that regulators were required to evaluate the downstream effects, which meant the rail line’s contribution to increased air pollution where the oil was transported.
Many environmentalists have feared that the Supreme Court’s ruling will hurt their ability to challenge future projects in court under NEPA.
A push from the president
Since 1977, the Council on Environmental Quality has overseen the implementation of NEPA by interpreting existing regulations and issuing guidance for federal agencies.
The authority came into question in late 2024, when the U.S. Court of Appeals for the District of Columbia Circuit ruled that CEQ lacked the authority to issue binding regulations regarding NEPA. Earlier this year, the U.S. District Court of the District of North Dakota made a similar ruling.
These decisions supported an executive order signed on President Donald Trump’s first day in office, in which he ordered CEQ to rescind all existing regulations and provide new, non-binding guidance.
Philip Karmel, an attorney with Bryan Cave Leighton Paisner with extensive experience handling matters under NEPA and similar statutes, told the Washington Examiner that this decision largely affects the public’s ability to submit comments on proposed actions.
“With the revocation of the CEQ regulations, public comment will no longer be required on draft EAs or draft EISs unless a federal agency’s own NEPA regulations require public comment,” Karmel said.
In April, the president also signed a memorandum aimed at speeding up the permitting processes. The memorandum called on all federal agencies to maximize their use of technology when conducting environmental reviews and issuing permits.
He specifically ordered agencies to eliminate the use of paper-based application and review processes, accelerate processing time, reduce the length of documents related to applications, increase the accessibility of such documents, improve transparency of permitting schedules, and more.
Additionally, Trump ordered CEQ to establish and lead an interagency office focused on permitting innovation.
Where things stand in Congress
Republican and Democratic members of Congress want to pass legislation that would establish meaningful reforms to the permitting process, speeding up the construction of solar farms, highways, transmission lines, natural gas pipelines, and more.
For top Republicans, like Westerman, that reform cannot happen without tweaking NEPA.
The Arkansas Congressman released an updated draft bill in late July. The bill, called the Standardizing Permitting and Expediting Economic Development Act, was co-sponsored by Rep. Jared Golden (D-ME). It aims to accelerate the pace of environmental reviews while limiting legal challenges.
If passed, the bill in its current form would simplify the scope of review required under NEPA, removing the requirement to consider or conduct new scientific or technical research. It would also mandate that federal agencies are not permitted to delay the issuance of an environmental review document because they are waiting for new research to be released.
The reforms would also limit agencies’ ability to include downstream environmental effects associated with infrastructure and energy projects, and include a 150-day deadline for project opponents to file a claim.
While there is a consensus that reforms are needed, McAliley warned that Republicans might focus on the wrong part.
“People have blamed NEPA for allowing project opponents blocking projects through lawsuits, but it is actually a tiny percentage of all the cases,” he said, explaining that research has found less than 1% of all NEPA actions are subject to a court challenge.
A 2019 study by researchers at the University of Utah found that only one in 450 NEPA decisions, out of 1,499 published between 2001 and 2013, prompted litigation.
“NEPA litigation is really not the key issue when it comes to permit reform,” McAliley said, adding. “If only less than 1% of all approvals, NEPA documents, are challenged in court, how can you say the litigation is the issue?”
Instead, he recommended focusing more on non-“sexy” issues like the permitting timeline and ways to modernize the process, as detailed in the president’s April memo.
In mid-July, Reps. Scott Peters (D-CA) and Dusty Johnson (R-SD) introduced legislation focused on digitizing the permitting process and reducing processing time for all federal permits, including NEPA reviews.
NEW BIPARTISAN BILL AIMED AT RED TAPE CRIMPING ENERGY AND INFRASTRUCTURE PROJECTS
Congress is in recess in August and will return in early September. Westerman is expected to present the bill to the committee shortly after members return to Washington to begin hearings.
If developers of projects like pipelines and transmission lines wish to start and complete construction before the end of the Trump administration, lawmakers must pass meaningful permitting reform by the end of this year or early next year.