Today, the House Committee on Natural Resources held an oversight hearing titled “Investigating the Appropriate Role of NEPA in the Permitting Process.”  

The National Environmental Policy Act of 1969 (NEPA) was designed as a regulatory compliance framework for projects or actions requiring a federal permit.  In practice, the NEPA process has often proven overly burdensome, costly and time-consuming for a range of economic sectors.

In many cases, federal agencies have used NEPA to delay or deny permitting. More recently, the Obama Administration has begun bypassing NEPA to preemptively deny project approval. Attorney Roger Martella, Jr. emphasized that uncertainty surrounding the NEPA process has a paralyzing effect on critical economic growth and energy independence projects.

“Despite the extraordinary contributions NEPA has made to informed decision making over 45 years, NEPA also is at risk for being hijacked as a tool of obstructionism by providing for unnecessarily broad review. Improperly stretching NEPA’s reach can lead to vast delays and uncertainty before agencies and the courts,” Martella said.

The fact that this fifty-year old law is routinely used as a statute of convenience to suit a preconceived agenda demonstrates the need for reform.

“Too often, federal agencies use the NEPA process to delay permitting for months or years and eventually kill projects. But, now when it looks as if it will not be an impediment to the permitting process, federal agencies are denying permits before the NEPA process is completed,” Chairman Rob Bishop (R-UT) said.

The panel focused on two recent federal agency decisions: the U.S. Army Corps of Engineers’ decision to deny a permit for the Gateway Pacific Terminal in Washington state and the EPA’s actions in the Bristol Bay Watershed of Alaska. In both cases, the agencies took controversial actions to sidestep NEPA and achieve a predetermined outcome.

“EPA would be a much more effective agency if it fulfilled its statutory mandate by faithfully following the well-established NEPA process, rather than by creating its own ad hoc process for implementing a preemptive veto,” CEO of the Pebble Partnership Thomas Collier stated.

In the case of Pebble Mine, EPA conducted its own analysis of the project, the Bristol Bay Watershed Assessment (BBWA), outside of the NEPA process. EPA later acknowledged the BBWA had significant gaps, including insufficient environmental analysis, that would have been covered under NEPA.

“If a precedent is established whereby EPA can veto any of these projects before they are proposed […] the chilling effect on our economy will be profound,” Collier added.

In an exchange with Rep. Debbie Dingell (D-MI), Collier explained he was denied due process and cannot file a permit application because the Army Corps of Engineers won’t make a decision while the EPA has already initiated a preemptive veto.  

Executive Secretary for the Washington State Building Trades Council Lee Newgent talked about his work with the Gateway Pacific Terminal and reiterated similar concerns.  

“The other issue at Cherry Point is the politicizing of the product and not the project. Gateway as proposed is a multi-commodity export facility and coal is only one of the export materials […] Our economy at the present time is linked directly to fossil fuels,” Newgent stated.