OPINION:
In a rare unanimous ruling, the Supreme Court recently came to two clear conclusions in Seven County Infrastructure Coalition v. Eagle County about how federal agencies should implement the National Environmental Protection Act. First, it said agencies should mind their own business and assess only the environmental effects under their jurisdiction. Second, agencies shouldn’t wander too far off the fairway when examining projects’ direct and indirect impacts.
This ruling follows a series of court decisions requiring agencies to adhere to their statutory authority rather than invent new authorities and limiting the deference courts need to give to agency interpretations of the laws they enforce.
This altogether salutary sanding down of the power and reach of the administrative state has been accelerated and enhanced, of course, by the Trump administration’s efforts to reduce and rationalize the rulemaking process. These approaches will be essential in permitting and building the critical energy projects — pipelines, power plants, offshore oil and natural gas production — that will ultimately be the difference between prosperity and penury for the United States.
For instance, President Trump’s Council on Environmental Quality recently withdrew the Biden administration’s guidance about how agencies should assess the effects of actions on climate change, making it clear that greenhouse gases would be addressed primarily, if at all, through the Environmental Protection Agency.
To be successful and durable, though, these efforts must eventually address and eliminate the redundancies in environmental statutes.
The National Environmental Protection Act, signed into law in 1970, has become a lengthy and pointless paperwork exercise. It mostly adds redundancy and increases regulatory burdens while providing no additional environmental benefits. The NEPA process routinely creates duplicative environmental assessments, prolongs project timelines and adds unnecessary costs to projects without resulting in any positive environmental outcomes. NEPA litigation unnecessarily delays projects by years.
Under the Clean Air Act, federal, state and local regulators already control emissions from construction equipment and airborne debris from land clearing, yet the NEPA process requires those to be assessed separately. Under the Clean Water Act, we already protect wetlands and regulate site runoff, and permits are required, yet the NEPA process requires those effects to be assessed separately.
The Marine Mammal Protection Act is another example. The MMPA was enacted in 1972, and it regulates, as the name suggests, marine habitats. In doing that, it shares regulatory space with the Endangered Species Act and NEPA. Consequently, it should be no surprise that regulators, courts, lawyers and companies have all had difficulty figuring out which statute applies when and to what extent. It probably doesn’t help that the MMPA has the most aggressive and conservation-oriented standard of the competing laws. Ordinarily, that would suggest that the other statutes would be considered redundant. However, that is not how it works in practice, where competing agencies pursue duplicative and sometimes inconsistent approaches.
Worse yet, the MMPA contains no sanctions in the event the agency delays approving the marine surveys that are the core of the statute. These delays often impose de facto bans on energy development, especially in and along the Gulf of America. The fact that those delays affect energy projects is, we can be certain, purely coincidental.
NEPA, ESA, the Clean Water Act, the Clean Air Act and MMPA: These statutes are all products of an energetic project started more than 50 years ago by environmental activists who wanted to manage large portions of the American economy. They are all well past their expiration date. As part of permitting reform, we need to modernize, rationalize and improve all of them.
• Michael McKenna is a contributing editor at The Washington Times.
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