Our leaders are letting the National Environmental Policy Act of 1969 (NEPA) die. But, maybe that’s okay. It’s time for a National Environmental Protection Act.

By the 1960s, century-accumulated costs of “progress” highlighted the need for new legislation. Rachel Carson had documented the effects of pesticides in Silent Spring. American Interstate System construction was bulldozing communities and ecosystems. Ohio’s Cuyahoga River caught fire—again. The Senate Committee on Interior and Insular Affairs opined that we were destroying our environment because of an information deficit, and NEPA would correct this.

A “procedural” statute, NEPA doesn’t mandate less environmentally destructive outcomes. Instead, its language suggests that the authors believed a government, in cooperation with its people, would make better choices with better information: a policy “to promote efforts which will prevent or eliminate damage to the environment and biosphere ….” Congress would execute this policy by requiring federal agencies to produce detailed statements—environmental impact statements (EISs)—on major federal actions. EISs would disclose foreseeable and adverse environmental impacts that could not be avoided and consider reasonable alternatives.

NEPA is the process that enables Wilderness Watch, and our supporters, to inform various federal agencies how proposed activities would impact Wilderness and whether they comply with the Wilderness Act. This has included stream-poisoning projects, predator-killing decisions, and proposals to reintroduce livestock to places in Wilderness where grazing has been absent for decades. Anyone who has commented on a project the agency is considering has likely done so under NEPA.

Because NEPA is merely procedural, it has suffered a death by 1,000 cuts accumulated over the decades.

All three branches of our government and both political parties bear responsibility for NEPA’s demise. In May’s judicial bludgeoning, the Supreme Court of the United States (SCOTUS) narrowed the scope of environmental review with blinders, allowing the U.S. Surface Transportation Board to view 88 miles of proposed railway in Utah without considering how the project would enable upstream fossil fuel production and downstream fuel refining by geographically connecting them. The Court reiterated NEPA as a “purely procedural statute that…simply requires the agency to prepare an EIS—in essence, a report.” In condoning compartmentalized environmental analysis over the bigger picture, SCOTUS summarized how our government regards NEPA nowadays. NEPA is a procedural hurdle on the way to an inevitable project. Sometimes the public can pause it, but only temporarily.

Many agencies in this current administration just transitioned their NEPA regulations into meaningless fluff that disempowers the public, but the accumulation of less flagrant offenses over the years led to this moment. The environmental assessment (EA)—originally created to ascertain whether significant impacts are possible and thus whether an EIS must proceed—has been inappropriately utilized at ever-broadening scales. For example, the Forest Service has recently conducted an EA for a 2.4 million-acre forestwide burn project—which includes 842,000 acres of Wilderness—in the Sequoia and Sierra national forests in California. The project will have no end and will indiscriminately burn Wilderness, roadless, botanical, and research areas. This is the largest intervention and manipulation project ever proposed for Wilderness. Yet, the EA’s draft decision claims this behemoth project will have no significant environmental impact.

In another example, when the public told the National Park Service (NPS) in 2018 that it hadn’t justified how killing half of the mountain goats on the Olympic Peninsula and helicoptering the other half into the North Cascades—impacting eight Wilderness areas— was the best environmental choice, NPS maintained it neither had to identify nor choose the “environmentally preferred alternative.”

One last example: The Bureau of Land Management (BLM) received 34,783 comments on a proposal to build the Ambler Road in Alaska, which would run adjacent to and negatively impact the Gates of the Arctic Wilderness. BLM counted 30,000 of these opposition comments as “one” because they were “standardized letters” with the same text, minimizing that 30,000 people agreed with the ideas in the letter, enough so to spend their own time submitting a copy. These offenses occur regardless of who heads the executive branch.

Congress also has contributed to the fall of NEPA. In the “Healthy Forests Restoration Act of 2003” (HFRA), Congress allowed the Forest Service to designate “treatment” areas without NEPA review, and created categorical exclusions (CEs) that allow logging in those areas, adding more CEs in decades since. The Council of Environmental Quality initially created CEs to avoid NEPA processes for actions with highly unlikely environmental impacts, enabling agencies to avoid environmental reviews for activities like mowing lawns at Forest Service ranger stations. Congress used HFRA to transform this administrative feature into legislative loopholes bypassing NEPA, deeming that 3,000 acres of logging (which underwent EISs in the 1990s) has “no environmental impact” simply because lawmakers don’t want to believe it. The “Fix Our Forests Act” bill pending in Congress elevates this to a macabre level, excising the public and NEPA with “fireshed” designations within which 10,000-acre CEs are permissible— so logging, burning, and grazing may proceed largely unexamined and unchallenged.

Our government doesn’t want better information. In our upside-down world, if the government spends the time to propose a project with potentially large environmental costs, NEPA and its values are annoying speed bumps to apparently inevitable “progress.” Since NEPA won’t sway decision makers from environmentally destructive decisions, it merely complicates how quickly the government can accomplish projects because of public pushback. It’s time for a National Environmental Protection Act, one that mandates substance over procedure, and reflects values that the NEPA authors thought we had.

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