Top Line: Increasing criticism of the National Environmental Policy Act and other federal and state regulations is coming from those who want to protect the environment by rapidly decarbonizing society.
Figure 1. The White House Council on Environmental Quality was created in 1969 by the National Environmental Policy Act (NEPA) to implement NEPA by ensuring “that environmental reviews for infrastructure projects and federal actions are thorough, efficient, and reflect the input of the public and local communities” (according to whitehouse.gov).
The White House Council on Environmental Quality issues regulations under the National Environmental Policy Act. These regulations are under attack from a new quarter: those who want to protect the environment by rapidly decarbonizing society. The conservation community should see this threat as an opportunity rather than a crisis.
The Aspen Institute’s Roadmap to Net Zero by 2050
Last winter, the Aspen Institute, a global think tank, “convened a group of policymakers, experts, and practitioners to consider solutions to expedite climate action.” Co-chairing the Aspen committee are two former chairs of the White House Council on Environmental Quality (CEQ), Katy McGinty (Clinton administration) and James Connaughton (George H. W. Bush administration) (Figures 2 and 3). During the Pacific Northwest forest wars, I interacted (okay, clashed) with both. The other eleven committee members come from for-profit, nonprofit, and academic entities.
Figure 2. Katy McGinty was President Clinton’s chair of the Council on Environmental Quality. Source: Wikipedia.
The Aspen committee articulated what they perceive the central problem in the United States to be:
Achieving net-zero emissions by 2050 is ecologically essential, technologically feasible, economically achievable, but procedurally impossible.
I generally agree.
After three roundtable discussions, the group lent their names to an eleven-page document entitled “Building Cleaner, Faster,” but with a notable caveat:
This report seeks to capture the essence of participant conversations, but individual participants may not agree with every aspect of the report. Rather, in affixing their name as a signatory, a participant is signaling support for the overarching concept of the series and the broad outcomes discussed herein.
In other words, as always, the devil is in the details.
This Aspen group “endorsed four critical paths to success”:
1. Immediate approvals: For categories of decarbonization projects where environmental impacts are well understood, either due to the nature or location of the project, Congress should establish approval criteria that enable project clearance without delay.
2. Accelerated approvals: For decarbonization projects that may cause unique or significant negative local environmental impacts, Congress should establish a bifurcated process that documents the categories of climate-beneficial projects at the outset, and then focuses environmental review and permitting on any uniquely local conditions of a project on an accelerated timeline.
3. Accelerated adjudications: Once a project is approved, any adjudications for decarbonization projects must include a final decision timeline of well under one year to ensure that protracted litigation does not undermine project viability.
4. State and local conformity: Eligibility for any federal infrastructure or climate-related funding, tax incentives, or grants shall be conditioned on a state or locality conforming to the same framework and timeline for fast approval and adjudication of projects.
Boiled down, the Aspen committee recommends that Congress change the National Environmental Policy Act (NEPA) and other laws that tend to often delay or occasionally prevent clean-energy projects. To those portions of the conservation community that work on pollution (air, water, and other kinds of pollution, but not carbon pollution of the air) and public land conservation issues, “change” sounds like “weaken.” To those portions of the conservation community that work on replacing fossil fuel energy production with carbon-free energy sources, “change” sounds good.
Figure 3. James Connaughton was President G.H.W. Bush’s chair of the Council on Environmental Quality.
How NEPA Works Now
One must try to save the Earth with the tools one has.
For actions that affect the human environment and require a federal permit, of which there are a huge number, NEPA must be complied with. Actually, it is the regulations issued under NEPA by CEQ that must be complied with.
Say someone wants to put a pipeline across your ancestral lands, clear-cut your favorite ancient forest, dam an important trout stream, or whatever. In many cases, a federal agency or several (for example, the Army Corps of Engineers, the Forest Service, the Bureau of Land Management, the Fish and Wildlife Service) is/are involved. The agency may be tasked with carrying out the Clean Water Act, the Endangered Species Act, the National Historic Preservation Act, or a host of other federal statutes designed to protect things society cares about.
If a federal permit is required for a project, NEPA regulations apply to the issuance of that permit. If the impact is significant, an environmental impact statement (EIS) is necessary. Often, EISs are challenged on procedural grounds—that is, on grounds they don’t comply with CEQ’s NEPA regulations.
Project developers and federal bureaucrats who aid them are frustrated with the time and money necessary to comply with NEPA. Conservationists and other interests are frustrated that compliance with NEPA too often means merely dotting all the i’s and crossing all the t’s. Many who should know better call it the National Environmental Protection Act. It is not.
Procedural Delay, Not Substantial Protections
In the end, it’s not that NEPA stops most projects. Rather, NEPA merely delays projects until the applicant and the decision agency show adequate NEPA compliance.
NEPA regulations are totally procedural. Despite clear statutory language allowing, if not mandating, actual protection of the environment, the current NEPA contains no substantive requirement. Environmental protection must merely be considered.
The dirty not-so-secret secret about NEPA is that the Corps of Engineers could approve a project to pave over the Earth, as long as the accompanying EIS had a reasonable range of alternatives, disclosed the environmental impacts, and considered reasonable and prudent mitigation measures.
The theory is that given the right information, federal decision makers will make the right decisions. But since NEPA was signed into law by President Nixon in 1970, practice has not comported with theory. The practice is that conservationists and others who oppose an environmental quality–destroying project use NEPA not with the expectation of getting a good decision out of a federal bureaucracy but as a way to stall for time—time to come up with a plan B. Maybe it is finding an endangered species, getting Congress or a state legislature to protect the area, spooking the project’s investors, and/or whatever. In the end, after all the rigmarole, a lot of projects that harm the environment are approved anyway.
Net Zero by 2050 and 50x50
My fundamental problem with the Aspen committee’s four critical paths to success is that the group assumes that the process of approving energy projects will adequately protect nature and the environment. History has shown this not to be the case. A carbon-free geothermal energy plant is as damaging to the natural environment as a fossil fuel energy plant. A solar farm in the desert will harm desert tortoises even though it generates “green” electrons. (I would note that solar panels can live quite well on roofs in town, while desert tortoises cannot.) Protection of nature and the environment must go hand in hand with decarbonization. This is because along with the global existential crisis of a warming climate (and land and water), we have a simultaneous and equal global existential crisis of extinction of native species. Society need not choose to address only one at the expense of the other.
Actions to conserve species are often friendly to the climate. For example, keeping carbon in the ground and out of the atmosphere not only reduces global temperatures but also prevents habitat destruction. Safekeeping more carbon in vegetation—forestlands, grasslands, wetlands (fresh and salt water), deserts, peatlands, and other lands—not only conserves and restores habitat for native fish, wildlife, and plants but also keeps carbon out of the atmosphere and safely in the biosphere.
Conserving 30 percent of the nation’s lands and waters by 2030 (30x30) is a goal of the Biden administration. It is but a milepost on the way to 50x50, which is scientifically shown to be essential to having functioning ecosystems across the landscape and over time. Both 30x30 and 50x50 are quite doable. See my Public Lands Blog post “30x30, Part 3: 44 Tasty Conservation Recipes One Can Make at Home—If One Lives in the White House.”
I can favor accelerating approvals of new carbon-free energy projects—but only if permanent protection of nature and the environment is accelerated simultaneously. I suggest a fifth critical path to success that must come before the other four outlined by the Aspen committee:
0. Immediate denials: For decarbonization projects that are well understood due to either the nature or the location of the project to be unacceptably harmful to nature or the environment, the federal government should veto project clearance before it is even applied for.
Such a “veto” should come in the form of conserving 30 percent and 50 percentof the nation’s lands and waters by 2030 and 2050 respectively.
More Necessary and Desirable Reforms to Facilitate Clean-Energy Projects
Besides assuring the public that enough nature will be protected before new development, other project siting reforms are desirable. Here are some major ones.
Add substance to NEPA regulations. Federal agencies should not only have to consider protecting the environment but should also actually have to protect the environment. See my Public Lands Blog post “Half of the National Environmental Policy Act is a Dead Letter.”
Pay more to play. Solar and wind are cheaper than fossil fuels for new electricity generation and are getting a bunch of new subsidies under the Inflation Reduction Act of 2022. Developers—especially in exchange for accelerated approvals—should pay more money so the project ends up being a net gain for nature and the environment.
Bonds to mitigate problems. Mines, solar farms, wind farms, oil and gas fields, geothermal plants, and the like all have an end of life. Bonds should be required to fully remove infrastructure that is no long needed and that if left in place will cause problems. (Don’t even try that “artificial reef” crap.) As many mine sites often pollute the water forever, there must forever be money to pay for their cleanup.
Trade industrialized public lands for habitat-providing private lands. Handing over public land to energy development—whether the electrons to be produced are green or brown—zeros out any public value of the public land. Such public lands so sacrificed should be sold to the developer at fair market value, and the proceeds should be used to acquire high-public-value private lands to again become public lands—lands that will never be subject to development.
Use eminent domain more and more generously. No utility corridor has ever been built without government allowing the applicant to use the government’s sovereign power of eminent domain to condemn private property for a public purpose. Such “takings” require, as they should, just compensation. However, compensation for such takings is usually limited to the value of the right-of-way of the energy corridor itself. Landowners are not compensated for other losses just as real, including but not limited to the diminishing of the quiet enjoyment of one’s property. Compensation—whether accepted voluntarily by the landowner or forced on the landowner by the government’s use of eminent domain—should be more freely given to cover diminished quiet enjoyment. The fair market value of quiet enjoyment of property should be appraised and then compensated.
If the landowner doesn’t agree with the compensation offer by the applicant, the landowner should be able to decline, with the developer then being allowed to use eminent domain on the entire property. The property would then be sold to a new buyer who is fully aware of the offending energy facility and can choose to buy or not. In these cases, the market would discover just what just compensation is for the loss of the quiet enjoyment of property. The sale to the new owner should also come with a “no-bitching” deed restriction for the benefit of the developer.
Changing NEPA Regulations to Save Nature, the Environment, and the Climate
Changing NEPA regulations?! What I am proposing is politically fraught with peril. Less peril, however, than continuing with the status quo, where we fail to save nature, the environment, and the climate.
Let us not forget that the NEPA regulations have already been changed. President Trump gutted them, and President Biden only partially ungutted them. Increasingly, I’ve found that Republican administrations leave wakes of deterioration, while Democratic administrations leave hardly a ripple of improvement.
The Aspen committee thinks that Congress must be involved. While Congress should be involved, it is too dysfunctional to be involved. Fortunately, Congress has already delegated enough power to the president to act on these matters.
While the NEPA regulations are being rewritten, the rewrite should incorporate actual substantive standards for protecting the environment and not just continued procedural consideration of maybe protecting the environment—as the NEPA statute originally contemplated.
What I am proposing is more complicated. But marrying permanent nature and environmental protection to streamlined clean-energy project approvals is in the end more likely to be accepted as public policy. As General and President Dwight David Eisenhower said, “If a problem is unsolvable, enlarge it.”
Bottom Line: Some NEPA detractors have a point. So do nature lovers and environmental protectors.