The National Environmental Policy Act (NEPA) is a critical environmental and civil rights law that gives communities the chance to weigh in on federal projects that may affect their neighborhoods, nearby lands and waters, air quality and more. Known as the “look before you leap” law, federal environmental reviews required by NEPA are an asset, not an impediment, to sound decision-making. But now, a side deal in Congress is threatening to sideline the public’s opinion in decisions that will directly affect our ocean, our coasts and our communities.
I am well acquainted with NEPA and its tremendous benefits for decision-making regarding the uses of the marine environment. Prior to my time as CEO of Ocean Conservancy, I was a litigator defending ocean ecosystems and marine mammals, and NEPA was a critical tool in that defense. In 2016, I authored a chapter in a legal textbook and put it like this: “NEPA’s enduring innovations are twofold: (1) imposing an obligation on all federal agencies to consider the environmental effects of a major federal action and alternatives to that action before taking the action; and (2) requiring disclosure of those environmental effects to the public and solicitation of the public’s view on proposed actions.” In short, NEPA is a commonsense law that fosters better results: Think about what you’re doing before you do it and inform the people whom it will affect.
NEPA is particularly important in the context of our ocean and coasts. NEPA applies to a wide range of ocean-related activities including management of fisheries, offshore energy, vessel traffic, ocean dumping, military activities and others. As is often the case with ocean and coastal resource management, any one of those activities might be managed under multiple laws and handled by different agencies. NEPA provides a common nexus that facilitates coordinated and consistent management of our ocean. For that reason, rollbacks to NEPA can have a disproportionately larger negative effect on ocean-related projects than on land-based projects where agency jurisdiction and therefore permitting and management processes can be clearer. Weakening NEPA would sideline the opinions of coastal communities in a wide range of ocean and coastal issues that directly affects their lives and local economies.
Congress has already streamlined NEPA to improve efficiency. Since 2012, Congress has enacted legislation on four separate occasions to overhaul the infrastructure permitting process and address industry concerns (MAP-21, the FAST Act, FAST-41 and IIJA). The latest changes were so significant that some agencies are still working to fully implement those changes. Additionally, the recently enacted Inflation Reduction Act of 2022 included almost $1 billion for environmental assessments, analyses and public engagement required by NEPA to understand the impact of big projects that use federal funds or that happen on federal lands. This new financial support for NEPA hasn’t had a chance to take effect yet, but agencies will soon be able to use this funding to increase the efficiency and timeliness of the environmental review process by increasing staffing, improving technical and scientific services and developing programmatic decision documents.
Instead of giving this infusion of much-needed funding a chance to take effect in support of NEPA, some lawmakers and industry representatives are moving to undermine this bedrock environmental law. A bill drafted by the American Petroleum Institute (API)—a trade group representing the oil and gas industry)—is rumored to be favored by Senator Joe Manchin (D-WV), who made a deal for its passage before the end of the year in return for his support of the Inflation Reduction Act.
This bill—a polluter wish list—would roll back bedrock protections under NEPA and sideline the affected public. Stacking additional so-called “reforms” on top of previously passed changes before agencies can fully implement them or fully analyze their effectiveness is likely to slow down project reviews, not speed them up. While the NEPA process gives communities a chance to weigh in, the API side deal is designed to push them aside and fast-track dirty and harmful projects. It is a bill forged in the backrooms of Washington by the fossil fuel industry and their congressional allies.
The truth is that when a project gets held up in the permitting process, it’s rarely NEPA’s fault—but much more likely because it’s a bad project with damaging consequences for our environment and public health. You deserve to have an opportunity to weigh in on projects that will affect our ocean. Urge your lawmakers to protect NEPA and say “NO” to this dirty side deal.
 Ocean and Coastal Law and Policy (2nd Edition) by Donald C. Baur (Editor), et al., 2016, at 211.
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