'Litigious Weapon' Unchecked: GAO Finds No One's Keeping Tabs on Environmental Reviews

WASHINGTON -- The Government Accountability Office found that sketchy data is being collected on lengthy and costly environmental reviews, with one administration critic saying the new report proves that the National Environmental Policy Act "has turned into a tool for delaying projects on federal lands."

NEPA "generally requires federal agencies to evaluate the potential environmental effects of actions they propose to carry out, fund, or approve," such as permits, "by preparing analyses of different comprehensiveness depending on the significance of a proposed project's effects on the environment--from the most detailed Environmental Impact Statements (EIS) to the less comprehensive Environmental Assessments (EA) and Categorical Exclusions (CE)," the GAO said in its audit released Tuesday.

The report found that no reliable data exists for the costs of enforcing NEPA or the number of environmental analyses performed each year, even though the Environmental Protection Agency is supposed to be tracking it. Information is scattered among various agencies with different standards of record-keeping; the Energy Department did reveal that the cost paid to contractors for an Environmental Impact Statement (EIS) can range from $6.6 million to as much as $85 million.

The impact statements take an average of 4.6 years to complete, effectively holding up projects at a rate that increased by 34.2 days per year between 2000 and 2012. Thirty years ago, the estimate of total time needed for such a study was less than a year.

“With few exceptions, the agencies we reviewed do not track the cost of completing NEPA analyses, although some of the agencies tracked information on NEPA time frames, which can be an element of project cost,” GAO said.

The audit was requested in February 2013 by House Natural Resources Public Lands and Environmental Regulation Subcommittee Chairman Rob Bishop (R-Utah), Natural Resources Committee Chairman Doc Hastings (R-Wash.), Energy and Commerce Committee Chairman Fred Upton (R-Mich.), Armed Services Committee Chairman Buck McKeon (R-Calif.), and Transportation and Infrastructure Committee Chairman Bill Shuster (R-Pa.).

"Public interest is best served when there is full disclosure of all expenditures associated with any government action," they noted in their request.

“This report substantiates concerns that the federal government has no system to track time or costs associated with NEPA, which is one of the most expansive regulatory laws in the country," Bishop said Tuesday. "The findings of this report are not insignificant and deserve to be given considerable attention and oversight moving forward."

"The National Environmental Policy Act is important for many reasons, however, I remain concerned about the exorbitant costs and delays associated with the process," he added. "I am also very troubled by the constant use of NEPA as a litigious weapon to halt or delay projects that wealthy special interest groups don’t like. This report will be instrumental as we work toward finding solutions for some of the biggest problems plaguing this '70s-era law."

Hastings said the GAO confirmed "that the federal government can’t even track how many lawsuits are caused by NEPA or how much it costs taxpayers to fund never-ending studies."

"Costly, abusive lawsuits and endless government red tape caused by NEPA harm new job creation, and there is a clear need to improve and modernize the law to ensure environmental reviews are completed in an efficient and timely manner so responsible decisions can be made on projects that will lead to new jobs and a growing economy,” the chairman added.

The ranking Democrat on the Natural Resources Committee, though, said the GAO report actually underscored the government's transparency and accountability.

“The GAO report confirms what many NEPA supporters have argued for years. NEPA gives the public a chance to engage their government in the democratic process, it holds the government more accountable, and it ultimately makes federal projects more efficient, which saves agency time and taxpayer dollars. NEPA isn’t perfect, but this report confirms that it is working and that the benefits far exceed the minimal cost,” Rep. Peter DeFazio (D-Ore.) said in a statement, which stressed that the report "debunked several Republican myths about NEPA."

DeFazio noted that "most" NEPA analyses do not result in litigation, but when they do the federal government "usually prevails."

One industry group, the Institute for Energy Research, said that's exactly the problem -- "paralysis by analysis."

"Opponents of energy production have been able to abuse NEPA by turning the process into an unbearable waiting game that delays decisions for certain projects. For businesses and people waiting to go to work, time is money and a delayed decision can be the same as a denied decision – no project and no paycheck," said IER Senior Vice President Dan Kish.

The combination of drawn-out impact statements and costly litigation can be "staggering," he said.

"You can send a kid through college and they can start on an advanced degree faster than it takes to put together an EIS. Because of this, investments that could have been made, weren’t made and the American people have been deprived of their own energy resources," Kish said.

"As GAO shows in their report, federal agencies have enabled the breakdown of NEPA by failing to keep tabs on the costs, benefits, time frames, and litigations related to the rule. NEPA is broken and if it’s not fixed it will continue to have damaging effects on American energy production of all kinds."