Brigham Daniels and Jamie Pleune: New NEPA regulations are a big win for Utahns, the nation and the environment

As the country engages in a dramatic infrastructure overhaul, we must avoid costly mistakes that harm people and nature.

(Rick Bowmer | The Associated Press) This May 30, 2017, photo shows the Bridal Veil Falls along the Provo Canyon, near Provo, Utah.

Over the last year, there has been a lot of talk about whether environmental permitting will stymie implementation of the Inflation Reduction Act, which will bring opportunities in Utah for geothermal, solar and wind development on federal lands that could benefit communities while facilitating a transition to renewable energy.

While some have described the National Environmental Policy Act (NEPA) as a paperwork nightmare and a roadblock on the path to decarbonization, these discussions rarely recognize incremental progress on permitting efficiency, such as the demonstrable success of the measures piloted through the FAST-41 program or the Interior’s proposed rule to bolster solar and wind development on public lands.

The Biden administration took another step toward progress when it recently issued proposed regulations that modernize the permitting process without compromising analytical rigor. The new regulations are a big win for communities and the environment.

NEPA is a far-reaching law that requires the government to analyze the environmental impacts of a proposed project before taking action. Through its major requirement — disclosing environmental harms of proposed projects — it incorporates the well-tested adage of measure twice, cut once. Shining light on the anticipated effects of a project allows communities to protect themselves against shoddy project designs, unacceptable risk and disproportionate harm.

NEPA’s critics characterize it as red tape that invites litigation; its champions hold it out as an important tool for improving environmental outcomes and reducing community impacts by subjecting government decisions to public scrutiny. The path forward is often characterized as either-or situation: Forego the transparency afforded by NEPA’s procedures or endure unproductive disclosure obligations. The new regulations take both characterizations seriously and this results in a better NEPA process.

Since its inception in 1970, NEPA has provided important environmental protections. Prior to NEPA’s passage, federal agencies could approve projects without regard to communities or the environment. For example, the Federal Highway Act of 1956 initiated construction of the interstate highway system. Focused on speed, the highway bulldozed communities, even where alternative routes were available. Such was the case in Overtown, Florida, known at the time as the “Harlem of the South.” The route for I-95 cut straight through this thriving community.

In 2009, the Federal Highway Administration acknowledged that the selected route had decimated the economic and social structure of the community with lingering effects that continue to plague the community, fueling anger, resentment and distrust. NEPA could have provided an antidote to this ill-advised project by requiring agencies to disclose environmental impacts, weigh alternatives and consider public comment before approving a permit or committing money.

In contrast, an engaged public and thoughtful officials used the NEPA process to improve the expansion of the Provo Canyon Road in the 1980s. The final agreed upon design kept the road out of the river, preserved Bridal Veil Falls and established a trail system enjoyed by many today.

As we embark on another period of major national infrastructure investments, we should avoid the mistakes of the past.

NEPA’s major focus is transparency about the impacts of government projects. Of course, this serves a vital role. Once the impacts are known, NEPA invites scrutiny and input. While this can create political problems for controversial proposals, it also invites the public’s help in improving projects and avoiding the harm projects might otherwise cause. In the event that proposals do not have negative impacts on the environment, the review required is minimal.

The new proposed regulations modernize and accelerate NEPA’s work because they encourage early community engagement, clarify the roles of lead and cooperating agencies, set transparent deadlines, encourage mitigation measures where appropriate and expand streamlining procedures. These measures will improve NEPA’s ability to protect communities and the environment, while taking community input seriously.

The new regulations require all agencies to work harder on public outreach. NEPA’s disclosure requirements are meaningless if the public does not have access to them. These new regulations will work to get more information into the hands of those most impacted by the decisions of the federal government.

As the country engages in a dramatic infrastructure overhaul, we must avoid costly mistakes that harm people and nature. A White House report estimates that the Inflation Reduction Act will bring an estimated $1 billion of investment in large-scale, clean power generation and storage to Utah between now and 2030. The proposed regulations offer a chance to move ahead thoughtfully as we work to make our country safer, cleaner and more competitive. The push to make NEPA both more nimble and more responsive should be commended.

Given that we are on the verge of an investment in infrastructure the scale of which our country has not seen in decades, these changes could not have arrived at a better time.

Brigham Daniels

Jamie Pleune

Brigham Daniels and Jamie Pleune are law professors at the University of Utah’s S.J. Quinney College of Law and are also affiliated with the Wallace Stegner Center for Land, Resources and the Environment.