While the National Environmental Policy Act (NEPA) has been described as the “Magna Carta of environmental laws,” too many environmental laws, including NEPA, have escaped empirical analysis. In a recent paper, NEPA at 50: An Empirical Analysis of NEPA in the Courts, John Ruple (Utah) and Heather Tanana (Utah) take a descriptive dive into NEPA as the authors feel that "moving from anecdote to empiricism will help inform ongoing discussions of how to streamline NEPA compliance while ensuring that agencies satisfy their three-fold requirement to foster environmental stewardship, meaningfully engage with permit applicants and the public alike, and carefully consider the environmental impacts before taking action. Conversely, divorcing NEPA reform proposals from fact greatly increases the risk that changes to NEPA’s implementing procedures will result in significant unintended adverse consequences.”
To this end, and relying on public Environmental Protection Agency (EPA) data bases that track, among other things, annual Environmental Impact Statements (EIS) and Environmental Assessments (EA), the paper painstakingly marches through an array of descriptive trends. In the end, the paper conveys some degree of optimism about NEPA’s overall efficacy. “NEPA appears to be working better than many believe, with roughly 99% of all NEPA decisions avoiding the most rigorous analysis contained in an EIS. Yes, EISs are subject to litigation at fairly high rates, but that is not surprising considering that they are conducted for the 1% of projects that require the highest level of analysis and that involve the most significant environmental impacts. Overall, just 0.22% of NEPA decisions result in litigation and that, we believe, says more about NEPA than anomalous EISs mired in litigation.” The paper's abstract follows.
"The National Environmental Policy Act (NEPA), the groundbreaking 1970 statute that requires federal agencies to take a 'hard look' at the environmental impacts of their actions, turned 50 this year. In this anniversary year, and with NEPA revision efforts a hot topic in environmental law, we begin by quantifying the burden imposed by NEPA compliance. We then look back on approximately 1,500 court decisions to quantify the rate at which NEPA decisions are challenged, assess how those cases are resolved, and compare NEPA cases to other environmental litigation. We then discuss efforts to “streamline” NEPA and why we believe those efforts are likely to have unintended consequences."
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