For most of us, the phrase “government bureaucracy” calls to mind a mountain of paperwork. Last week, the Supreme Court heard a case concerning one of the major sources of such paperwork: the National Environmental Policy Act. Although the law’s purpose is laudable, the court’s interpretation threatens to render an already taxing process totally unworkable.
The specific dispute in the case is over a federal agency’s approval of the construction of 88 miles of rail in rural Utah, a project supported by the state, local communities, and tribes. Several environmental litigation groups, however, oppose the project. They sued, of course, arguing that the agency cannot approve the private project without first exhaustively analyzing the risk of a train accident in Colorado, air pollution in the Gulf Coast, and global climate change.
Those are serious environmental issues to be sure, but their connection to this modest rail line is tenuous. When policymakers talk about the need for permitting reform, this is the kind of case they have in mind.
The Biden administration is urging the Supreme Court to uphold its approval of the project, and it deserves credit for rejecting the litigants’ effort to make the NEPA even more burdensome. Drawing a reasonable line on what an agency must consider when approving projects is better for agencies, the regulated community, public participation, and the environment.
But the case is about far more than a single, rural train track. It will decide how constrained agencies are in implementing every kind of project. While you might expect the average NEPA conflict to concern infrastructure or energy development, that’s not true.
Instead, NEPA conflict typically involves less sensational stuff, such as forest restoration, wildlife habitat improvement, water conservation projects, and renewable energy development. That’s why the Property and Environment Research Center, a conservation organization in Montana, weighed in on the case, urging the Supreme Court to interpret the NEPA so that it works for the wide variety of conservation projects affected by it.
In the last decade, the Forest Service has had more projects go through the most burdensome level of NEPA analysis than any other agency — by a margin of 2 to 1. That’s because the NEPA is implicated every time the agency wants to thin a forest or implement a prescribed fire to promote forest health, improve wildlife habitat, or reduce wildfire risks.
A workable NEPA process is critical to forest rangers’ ability to clear an 80 million-acre backlog in needed forest restoration before it all burns to the ground. Already, it takes more than three years for a forest restoration project to navigate the NEPA process and for on-the-ground work to begin. If this case goes the wrong way, it will further hobble our ability to tackle the wildfire crisis.
According to a recent study by the Breakthrough Institute, an environmental research center in Oakland, California, forest management projects are also the most common target for NEPA litigation, a threat that has increased 56% in the last decade. And this litigation explosion is driven by a relatively tiny number of extremely litigious groups. According to the Breakthrough Institute analysis, just 10 organizations were responsible for two-thirds of the challenges to forest restoration projects.
CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER
It’s not just forests, however. The extreme type of analysis demanded in this case has already been used to disrupt markets for water conservation in the Southwest, bison reintroduction in the northern plains, efforts to address the effects of wild horses on native wildlife, and renewable energy development. When these projects are delayed or discouraged by bureaucracy and litigation, the environment pays the price. How many forests have to burn waiting for restoration before we recognize that bureaucratic delay destroys wildlife habitat, degrades water quality, and increases greenhouse gas emissions?
The idea that a butterfly flapping its wings on one side of the planet causes a tornado on the other may be poetic, but it’s a poor theory for implementing a permitting process. Fortunately, it looks like the Supreme Court will trim NEPA litigation based on the oral argument. The court may even be unanimous in its decision to bring some common sense to the NEPA by rejecting this interpretation. The future of America’s forests may very well depend on it, and not just for all the paperwork it would save.
Jonathan Wood is vice president of law and policy with the Property and Environment Research Center, a conservation organization based in Bozeman, Montana. Dylan Soares is PERC’s conservation counsel.
This article was originally published at www.washingtonexaminer.com
