The Washington Post's Brad Plummer posted an item Friday that somehow managed to whitewash the National Environmental Policy Act's starring role in our nation's infrastructure crisis without ever even mentioning the act. Quite an accomplishment. Plummer begins:
To hear some Republicans tell it, pesky environmental rules are a major reason why it takes so long to build highways and bridges. That’s why the GOP’s transportation bill would speed up reviews for various projects. But is this theory true? The evidence, it turns out, is hard to come by.
This is not a terrible start. Data on how environmental activists use NEPA to delay transportation projects is hard to come by. But Plummer has already limited his scope way too narrowly. NEPA applies to all federal actions, everything from funding computer labs to permitting privately funded oil pipelines, not just transportation projects. Plummer continues:
For starters, according to a Congressional Research Service report from August, only about 4 percent of federal highway projects require an Environmental Impact Statement from federal agencies. (Since these tend to be the largest, costliest projects, they make up about 15 percent of all spending.) And it’s true that many of those projects are often delayed — but from what evidence is available, that’s usually not because environmental groups are complaining about wetlands or endangered species or excessive sprawl.
Plummer again has significantly narrowed the scope of the problem. It is true that only 4 percent of federal highway projects require an Environmental Impact Statement (EIS), but an EIS is just one way, all be it the most time consuming, that NEPA can slow a project down. The very process itself, even if it ends in a finding of "Categorical Exclusion" (meaning that the agency in question has determined the proposed action does not "individually or cumulatively have a significant effect on the quality of the human environment"), can add years to a project. That is why you see more and more local governments declining federal funds entirely even for minor projects. They don't want to bother with the NEPA process at all. Plummer continues:
In 2000, the Federal Highway Administration conducted a survey of 89 large projects that had suffered long delays, and found that just 19 percent were bogged down due to environmental concerns (resource agency review, endangered species, or wetlands). The vast majority of the projects were delayed because of lack of funding or because they were a low priority for the state (32.5 percent), because of a local controversy (16 percent) or because the project was simply very complex or had shifted in scope (21 percent). Another 2005 study focused on Oregon found that environmental concerns were not a major source of delay — and that “efforts to streamline the process may not alter overall timelines.”
Let's take the 2000 FHA survey first. Plummer spins the numbers to claim that only 19 percent of the 89 projects surveyed "were bogged down to environmental concerns." But he leaves out "lawsuits," "local controversy," and "change in scope." All of these could be caused by underlying environmental claims. Furthermore, NEPA is a tool for anyone who wants to stop a federal action, not just environmental activists. For example, atheists used NEPA to slow down the reauthorization of a statute of Jesus in a National Park (Jesus was found to have "no significant effect on the quality of the human environment"). And, for some reason, Plummer forgets to mention the main finding of the 2005 Oregon study that he links to: that the average time to complete the NEPA process is 6.1 years. Plummer later adds:
The Obama administration, for its part, has taken a different approach to this issue, selecting 14 specific infrastructure projects that have been especially plagued by delays and pushing those through expedited approval. Many environmental groups and transit advocates prefer this strategy of focusing on the tiny subset of projects that are actually causing problems rather than broad legislative changes.
This is the absolute worst approach to NEPA reform. Instead of addressing the real underlying problem, the fact that NEPA has become a litigation tool usable by anyone who wants to delay and possibly shutdown a federal government action, Obama has chosen to govern by waiver. Only those projects that meet Obama's approval get regulatory relief. Everyone else must continue to suffer under the current regime.
As far as the NEPA reform measures in the House Transportation bill, they are decent but too narrow. They only apply to federally funded transportation projects. What about the over 40,000 oil and gas well currently tied up in the NEPA process?