{"id":713715,"date":"2026-04-08T16:26:26","date_gmt":"2026-04-08T16:26:26","guid":{"rendered":"https:\/\/www.europesays.com\/us\/713715\/"},"modified":"2026-04-08T16:26:26","modified_gmt":"2026-04-08T16:26:26","slug":"nepa-and-its-discontents-the-american-prospect","status":"publish","type":"post","link":"https:\/\/www.europesays.com\/us\/713715\/","title":{"rendered":"NEPA and Its Discontents – The American Prospect"},"content":{"rendered":"<\/p>\n

This article appears in the\u00a0April 2026<\/a>\u00a0issue of\u00a0The American Prospect magazine. If you\u2019d like to receive our next issue in your mailbox, please subscribe here<\/a>.<\/p>\n

For over half a century, the National Environmental Policy Act (NEPA) has required the federal government to analyze the environmental impacts of its actions, and the actions it permits. In the last few years, the law has become a flashpoint in broader political fights over who should have a say in how land is used and how landscapes are reshaped. Now, a series of blows have cast its future into doubt.<\/p>\n

It\u2019s rare to see a bedrock law undergo such a quick succession of changes after decades of relative stability, and rarer still that the political appetite for reform remains undiminished. The last three administrations have rewritten NEPA\u2019s implementing regulations, and the last two Congresses have modified its statutory text. The 118th Congress<\/a> set time and page limits for environmental impact statements in 2023, and forced through approval of a contested fracked gas pipeline in West Virginia; last year\u2019s Big Beautiful Bill<\/a> amended NEPA to allow permit applicants to pay for faster environmental review.<\/p>\n

More from Hannah Story Brown<\/a><\/strong><\/p>\n

Multiple bills proposing changes to NEPA continue to move in Congress, including two from Rep. Bruce Westerman (R-AR): the SPEED Act<\/a>, which would shrink the scope of the NEPA process (and court challenges to it) for projects of all sorts, from pipelines to highways to clear-cuts; and the Fix Our Forests Act<\/a>, which seeks to expand what forest management actions are exempted from NEPA.<\/p>\n

The SPEED Act passed the House<\/a> last December, with 11 Democrats in support. \u201cIt would be more honest for them to just say they want to repeal NEPA, because the SPEED Act constrains it so much,\u201d said Ana Unruh Cohen, former senior director of NEPA, infrastructure, and clean energy under President Biden. Unruh Cohen is currently staff director for the House Natural Resources Democratic Committee. \u201cTo adapt a phrase from Grover Norquist, they want to shrink NEPA so that they can drown it in a bathtub.\u201d<\/p>\n

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For all of the desire to move fast and break things, NEPA\u2019s critics have avoided discussion of what the law was intended to accomplish.<\/p>\n<\/blockquote>\n

Two recent court decisions have also unsettled the status quo, including a 2025 Supreme Court decision<\/a> aiming to limit lawsuits challenging how agencies implement NEPA. But a wild-card 2025 opinion<\/a> from the D.C. Circuit, revoking the Council on Environmental Quality\u2019s decades-old authority to guide NEPA implementation across federal agencies, quickly reinforced<\/a> by a Trump executive order, caused more immediate disruption. Without the Council coordinating implementation, the orchestra has lost its conductor. Individual federal agencies have rolled out their own inconsistent NEPA regulations, sowing new uncertainty.<\/p>\n

Claiming that \u201cNEPA has been twisted into a weapon to block American energy, infrastructure, and conservation projects,\u201d Interior Secretary Doug Burgum rescinded more than 80 percent<\/a> of the department\u2019s NEPA regulations and compressed environmental review of major fossil fuel and mining projects down to 28 days<\/a>. The administration has also gutted<\/a> permitting staff, issued executive orders on permitting that expressly privilege<\/a> fossil fuel infrastructure, and emboldened<\/a> agency personnel to transform the environmental review process into a rubber stamp, but only when politically desired.<\/p>\n

Amidst all this disorder, converging pressures from a beleaguered clean-energy industry seeking regulatory certainty and a fossil fuel industry looking to silence public opposition to its infrastructure have kept permitting reform on the legislative agenda. The White House\u2019s suspension of already-permitted offshore wind projects led top Senate Democrats<\/a> to pull out of SPEED Act talks in January. But the issue continues to percolate, even as the Trump administration disembowels<\/a> U.S. climate regulation and climate science.<\/p>\n

Deregulatory proposals would lock in dirty-energy production by undermining future administrations\u2019 ability to rescind permits. This pursuit of what is politically feasible is increasingly coming at the cost of considering what is necessary for our planet\u2019s future, as well as what communities deserve.<\/p>\n

No Way Out but Through<\/strong><\/p>\n

The political fixation on expediting approvals of energy infrastructure is increasingly<\/a> tied<\/a> to the idea<\/a> of meeting the AI industry\u2019s skyrocketing electricity demands. This justification, typically presented with nods toward national security<\/a> and winning the AI race<\/a> avoids answering some hard questions: What don\u2019t we want built? What do we want built, how, and by whom? In an engaged democracy, these would be topics that communities as well as capital have a role in answering.<\/p>\n

The push to accelerate cross-partisan momentum for an America that builds \u201cat speed and scale\u201d obscures deep material rifts at the heart of our energy debates. Conversely, the push for a just energy transition is preoccupied with managing those rifts: How to build out clean energy without damaging ecosystems. How to phase out fossil fuels without leaving some workers and consumers behind. How to fund the transition. How to handle local opposition to clean-energy infrastructure. How to handle the fossil fuel industry\u2019s opposition to its own necessary obsolescence.<\/p>\n

The politically influential abundance movement, which wants to eliminate regulatory obstacles to major infrastructure projects, would prefer to muscle through these conflicts. They urge more leeway for government and developers and less opportunity for consultation and litigation, rather than distinguishing between different kinds of inputs, acknowledging the inevitable messiness of democratic processes, and working to improve them. Many, though not all<\/a>, of the permitting reform bills introduced in Congress align with this thinking: Better to let projects get built faster, even if it means bulldozing through public opposition.<\/p>\n

In a democracy, not everyone will get what they want. But the job of government is, in part, the process of grappling with complicated questions, and coming up with an answer that best serves the public interest. This fits with one of the original goals of NEPA: to inform government decision-making by requiring<\/a> the reporting and consideration of all sorts of \u201creasonably foreseeable environmental effects.\u201d<\/p>\n

For all of the desire to move fast and break things, NEPA\u2019s critics have avoided discussion of what the law was and is intended to accomplish. With so much unsettled, I asked experts who have litigated, studied, and guided the law\u2019s implementation to understand what the political conversation was missing.<\/p>\n

Information vs. Mission<\/strong><\/p>\n

The National Environmental Policy Act is an idealistic statute, according to Dinah Bear, longtime former counsel for the Council on Environmental Quality, in that it\u2019s \u201cpremised on the basis that information actually matters; that people will act in a rational way upon getting that information.\u201d But it is also pragmatic, in that the environmental review process is intended to expose risks to natural resources, community well-being, and even the developer\u2019s reputation or bottom line, and to create an opportunity to mitigate those risks.<\/p>\n

\u201cOne thing NEPA has usefully done is push mitigation,\u201d said Dan Farber, Sho Sato Professor of Law at the University of California, Berkeley. \u201cEven though it doesn\u2019t stop the basic project, maybe they do somewhat less environmental damage.\u201d One hurdle to this, Farber noted, is that there isn\u2019t enough research into whether mitigation measures actually achieve their goals of reducing harm and protecting species. \u201cWe make a lot of predictions about how mitigation will work. We don\u2019t follow this up to see what happened, and certainly not in any systematic way.\u201d He suggested that more investment on the back end to ascertain how well mitigation measures actually work would improve the NEPA process.<\/p>\n

Agencies aren\u2019t the only ones who benefit from getting information from NEPA needed to make decisions. \u201cI think it\u2019s important from the environmental side, but I also think it\u2019s fundamental to our democracy \u2026 for people to know what the government is doing,\u201d Unruh Cohen said, noting that civil rights and environmental concerns both propelled the creation of NEPA. \u201cIt\u2019s an environmental statute, but it\u2019s bigger than that as well.\u201d<\/p>\n

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Inadequate staffing is one of the main problems that has undermined NEPA\u2019s implementation.<\/p>\n<\/blockquote>\n

Many critics of NEPA today view the legal challenges brought under the law as more of a bug than a feature. But complaints about too much process or too many lawyers tend to avoid discussion of outcomes: why opponents of a government action use available procedural tools to get at more substantive issues, and what the consequences of taking away that legal recourse could be.<\/p>\n

\u201cLitigation is fueled by opposition and legal ambiguity,\u201d said Jamie Pleune, associate research law professor at the University of Utah. \u201cIf you deal with people\u2019s concerns in an up-front manner that makes them feel they have been heard, or in a transparent manner where they feel the decision was resolved in a fair process, you are going to at least reduce opposition.\u201d<\/p>\n

Whatever its justification, limiting the public\u2019s ability to sue when the executive branch operates outside of the laws passed by elected officials is an anti-democratic reform, particularly as the Trump administration has basically stopped enforcing<\/a> environmental laws against polluters altogether.<\/p>\n

Plus, as Erik Schlenker-Goodrich, executive director of the Western Environmental Law Center, observed, the \u201ccontested politics over a particular project would not go away in the absence of NEPA.\u201d Schlenker-Goodrich said that in the absence of a clear mission, or when agencies have to balance conflicting priorities, as with the Bureau of Land Management\u2019s multiple use mandate for managing public lands, agencies tend to be risk-averse. \u201cThey don\u2019t want to be perceived as taking sides.\u201d With contested projects, \u201cthey try to make everybody happy and in the process make no one happy.\u201d Schlenker-Goodrich suggested that \u201cmission clarification, real leadership, and real resources brought to the table can address much of that.\u201d<\/p>\n

Personnel Is Policy<\/strong><\/p>\n

Throwing out the law and depriving the public of information are not the only ways to make the NEPA process move faster. Another option is giving underfunded agencies the resources they need to fully perform their duties.<\/p>\n

When Dinah Bear joined the Council on Environmental Quality in 1981, she recalled that several departments had \u201csmall but somewhat robust interdisciplinary offices\u201d to inform the NEPA process. The Forest Service had \u201cprofessional sociologists and economists on staff to assist in analyzing the related social effects of the agency\u2019s decision-making.\u201d<\/p>\n

One of NEPA\u2019s latent value-adds comes from language requiring that the government \u201cutilize a systematic, interdisciplinary approach which will ensure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision.\u201d But much of that interdisciplinary expertise has been eroded by decades of underfunding. A brief bright spot came in 2022, when the Inflation Reduction Act provided<\/a> $1 billion to support agency capacity for environmental reviews, but in 2025 Congress rescinded<\/a> any of that funding yet to be spent.<\/p>\n

Unruh Cohen said that specialist hires were an underrecognized obstacle in speeding up the permitting process. \u201cWhen I was in the Biden administration, we were checking with agencies, what people do you need to hire? How can we help you hire those people? And one example from the Bureau of Land Management, when they were looking at what the choke points were for them, was archaeologists.\u201d<\/p>\n

Bear likewise identified inadequate staffing as one of the main problems that has undermined NEPA\u2019s implementation over the years, a finding backed by a study<\/a> of 41,000 Forest Service NEPA decisions. As responsibility for producing environmental analyses has shifted from agency staff to third-party contractors, conflicts of interest<\/a> have increased, and institutional knowledge has suffered. \u201cNEPA was intended to infuse agencies themselves with an understanding of the environmental effects of what they were proposing to do,\u201d Bear explained. \u201cI think much of the value of wrestling with the NEPA process \u2026 gets lost when it\u2019s contracted out.\u201d<\/p>\n

As private-sector priorities like reducing costs have taken prominence in our government, reducing harm and promoting democratic decision-making has been deprioritized. Both recent amendments to NEPA\u2014allowing project developers to draft their own environmental impact statements and to pay for expedited permitting\u2014vest further power in the hands of corporations. Once whittled down, it becomes easier to justify whittling NEPA down further: the classic playbook of starving public programs of the resources they need to succeed in order to justify their privatization.<\/p>\n

There are always trade-offs between conflicting interests. Without a clear vision for which interests must be prioritized, more powerful interests win. The work of breathing new life into the National Environmental Policy Act will require our leaders getting comfortable with the conflicts and trade-offs required to protect the land and those that live here, now and for generations to come.<\/p>\n

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