Our Wild Lives
Our Wild Lives takes listeners into the heart of wildlife conservation, sharing compelling stories from wildlife professionals doing critical work around the world. Your hosts Katie Perkins and Ed Arnett, of The Wildlife Society, bring you thought-provoking conversations with leading experts and emerging voices. Each episode dives into the wild lives of diverse species, explores complex ecosystems, and unpacks the urgent issues facing wildlife conservation.
Our Wild Lives
NEPA: The Policy Behind the Places We Love
After nearly 60 years of the National Environmental Policy Act, proposed changes could threaten the strength of this cornerstone conservation legislation.
In this episode of “Our Wild Lives,” TWS members Natalie Jacewicz, assistant professor of law at the University of San Diego and Cameron Kovach, Juris Doctor and TWS Chief Program Officer, break down the National Environmental Policy Act (NEPA) and discuss what proposed changes could mean for the future of environmental review.
Tune in to learn more about what NEPA is and is not, the difference between procedural and substantive laws and what it all means for wildlife professionals.
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[00:00:00] Katie Perkins: What exactly is the National Environmental Policy Act better known as NEPA? And why is it at the center of so much debate? Passed in 1970, NEPA is one of the foundational environmental laws in the United States. At its core, it requires federal agencies to consider and disclose the environmental impacts of major federal actions from energy development, infrastructure projects, to land management decisions.
NEPA doesn't dictate outcomes or prohibit projects outright. Instead, it's designed to ensure informed decision-making, transparency, and public involvement before actions move forward. Lately, though, NEPA has become a bit of a charged subject. Some say the process is too slow and stands in the way of development. Others argue it's one of the most important tools we have to protect our wildlife, our communities, and natural resources. Add in executive orders, regulatory changes, court decisions, proposed legislation, things get complicated really fast. So today I'm joined by Cameron and Natalie, and together they're gonna unpack what NEPA actually does, clear up some common misconceptions and explore how recent amendments and executive actions are changing the landscape of environmental review.
They're also gonna dive into what these changes could mean for wildlife professionals, conservation outcomes, and the future of federal decision-making.
I'm your host, Katie Perkins, and this is the Our Wild Lives podcast, brought to you by The Wildlife Society.
Today we're really gonna dive into NEPA what it is, what's happening with it, and what it means for wildlife professionals. So I think just jumping off, Natalie, can you introduce me and what your job is and what your involvement with The Wildlife Society is?
[00:01:48] Natalie Jacewicz: Of course, my name is Natalie Jacewicz and I'm an assistant professor of law at the University of San Diego School of Law. I teach torts, but also environmental law and natural resources law. And I joined The Wildlife Society this past year partly because I wanted to learn more about how people who are actually on the ground doing the management decisions and monitoring, think about environmental issues and wildlife management.
[00:02:13] Katie Perkins: Awesome, thanks. And Cameron, you're joining us, your TWS staff, but for those who don't know, give us a little background on, on what your involvement with TWS is.
[00:02:21] Cameron Kovach: Yeah, absolutely. And thanks so much for having me, Katie. My name is Cameron Kovach, I'm Chief Program Officer for The Wildlife Society. I've been with the organization for 10 years in a variety of capacities, but focused strongly on environmental policy. So my background is I started my career as a wildlife biologist and eventually heard the call of DC and, went to Vermont Law School to get a Master's of Environmental Law and Policy and a jJuris Dctorate.
[00:02:46] Katie Perkins: Awesome. So NEPA, just tell me like, what is it. Natalie, maybe you can take this one first. What is NEPA and what, you know, where it started, where we are now.
[00:02:55] Natalie Jacewicz: Great. Well, NEPA can be summed up in the injunction to look before you leap. That is, it tells agencies, uh, before you permit or fund or undertake any kind of major federal action, that could have significant effects on the environment. You need to think about what those environmental effects are. You have to put out a detailed document statement saying what those effects are. Get the public's feedback on whether or not you've captured all the different effects. And we're talking about things that run the gamut from biodiversity effects to climate change effects, to water pollution, you name it, noise, um, any of those things.
Think about all of it. And then at the end, you can make whatever decision you want. So you are allowed as the government to go ahead and, uh, choose to take an action that will end up harming the environment in X or Y way, but you're supposed to make it clear that you've thought about it first so that we, the American people can feel confident that you've thought through the consequences of the action and have decided it's still a good idea.
[00:04:07] Katie Perkins: So NEPA is it, is it technically a protection law or is it really just a set of guidelines, like you were saying, Natalie, where the government can then make an informed decision?
[00:04:16] Natalie Jacewicz: It's really more of a procedural act rather than a substantive act. And I'm sure we'll be talking about this more, but that's part of why the statute ends up coming in for some criticism. So it is a way of making sure that environmental considerations are taken into account. It was passed in 1970 at a moment when the nation was incredibly concerned about a variety of environmental harms that were going unaddressed and there weren't laws on the books to help, clean up, you know, rivers that were catching on fire, clean up, oil spills off of Santa Barbara. It came about in order to ensure that people think about environmental effects in the government, but it doesn't necessarily ensure that they do anything about them.
We have other statutes that are more substantive. But NEPA is really procedural, so it, is flexible from a policymaking standpoint. Doesn't commit you to any given policy choice, but, it does make you consider that, policy choice before you move forward with it.
[00:05:11] Katie Perkins: Yeah. Can you dive a little bit more into just the nitty gritty of procedural versus substantive?
[00:05:16] Natalie Jacewicz: Absolutely. So substantive is a term that we use in law, and anyone who wants to it.
[00:05:23] Katie Perkins: Okay.
[00:05:25] Natalie Jacewicz: Refers to laws in which you set a rule or something that has to be done. So a good contrast with NEPA is the Endangered Species Act. The Endangered Species Act, requires that the government list species that are endanger of extinction, and then it has a set of rules that the government must follow.
So the government barring some caveats are almost never used and that aren't worth getting into here. Doesn't have the option to say, yeah, you know what, if we build this plastics plant right here, uh, that's gonna end up driving this fish extinct, but who cares? Um, instead The Endangered Species Act says, no, you're not allowed to drive the fish extinct. So you have to take certain actions to ensure that you don't, and maybe you don't even build the plant at all. So the Endangered Species Act is substantive. It also applies to a narrower set of concerns and instances, situations in which endangered species are implicated. By contrast, NEPA is broad and procedural, so it applies to number of categories of projects that could have some kind of impact on the environment and impacts on the environment are very broadly defined to include anything from, you know, as I said, like noise pollution, aesthetic preferences, you know, just something building something ugly. All the way to biodiversity and climate change. But, it only requires you to go through certain procedures in making decisions. And if you check the box, if you go through the procedures, you can ultimately decide to do whatever you want so you can build that manufacturing plant even if you know that it's going to say, create a lot of air pollution that people in the community don't like. So long as you have considered the effects of that air pollution, you have satisfied NEPA.
[00:07:12] Katie Perkins: Gotcha. That makes a lot of sense actually. So I really appreciate that. So Cameron, we say that NEPA's been around since the seventies. So why is it coming back into the news cycle and why are we talking about it now? What changes has it recently undergone or are soon to undergo?
[00:07:28] Cameron Kovach: Oh my goodness. Yeah. NEPA has become, definitely become a hot topic, lately and I attribute that to a few reasons. The first is, there have been several recent executive actions that promote energy and mineral, production on federal lands and waters. And then shifting narratives regarding energy development that frames environmental laws like NEPA as being part of this overburdensome administrative state. And then on top of kind of the executive orders that we're seeing for this administration and some of the narrative from industry. We also have a recent Supreme Court case that that paved the way for broad scale deregulatory actions, like the removal of the longstanding Chevron Deference. And the Chevron Deference is a legal doctrine where courts defer to agency expertise when a law was silent or ambiguous. And then the courts would, take the agency's interpretation as long as they deemed it to be a reasonable interpretation of, of the law.
[00:08:29] Katie Perkins: Gotcha. So really the criticisms are coming from kind of all angles and the hope is that NEPA can maybe become something that is satisfactory for protecting the environment, but also for helping development happen, or is that. Is that really what's going on here?
[00:08:45] Cameron Kovach: Yeah, I think you can say that, I mean there's this, this prevailing idea that NEPA creates excessive delays for projects. But how accurate that description is is obviously subjective as to kind of what side of the fence you're on. Um, does NEPA slow down projects? Absolutely. But, long before NEPA existed, TWS has recognized that economic expediency does not necessarily justify upsetting the biotic balance. And so how much of what we enjoy today can be attributed to NEPA And then on top of that, how much of what we enjoy today can be attributed to kind of the length of time it takes for a NEPA review.
And then that's, again, not saying that there's not room for improvement there. There certainly is, but you're starting to get into that gray area of speed versus integrity or scientific input in the decision making process and what that balance looks like.
[00:09:44] Katie Perkins: Right. Natalie, could you dive into a little bit of some of the specific changes that are being, proposed for NEPA now?
[00:09:52] Natalie Jacewicz: Yeah, well, I'll just back up for a moment and say that NEPA went without amendments for the better part of 30 years and then has started getting amended. Uh, Within the past couple years with many more amendments potentially on the horizon. So one amendment, that passed in 2023 or a series of amendments rather. Were about setting, you know, page limits for environmental impact statements and environmental assessments. Those are documents that are completed to show that you complied with NEPA, where you discussed the environmental effects of a project. the government via Congress tried to say, okay, we're gonna make NEPA less burdensome, and the way we're gonna do that is through page limits and timelines. As people might guess listening to this, you know, that only has limited effect because there's only so much that agencies can do with the resources they have. You can tell them, we want you to cut your time down by half. Um, and at a certain point, as Cameron was acknowledging, maybe that just starts affecting the quality of the analysis you're able to do.
You can't just, you know, magically increase your productivity. So those are past amendments from 2023. Now there are a couple amendments that passed the house and are pending in the Senate. One of those, bills is the, e-permit bill. That bill is basically about trying to come up with some sort of standardized electronic platforms for agencies to share data and, maybe use some AI tools to go through comments from the public and categorize them. Help with imaging, using 3D Imaging to show the public what a given project might look like. I expect we're gonna be talking less about that today. The, bill that's a bit more controversial and that's been getting more attention is the Speed Act, and I can't go through all the different changes that the Speed Act makes, but I'll highlight a few. one is that. Speed Act. In addition to setting a lot of deadlines, you know, even more minute deadlines,than previously applied. The Speed Act, sets boundaries on the scope of effects that agencies are allowed to consider. So there was a Supreme Court case over the summer that said that agencies, when conducting NEPA analysis don't to consider environmental effects of other projects, even if those projects are somewhat connected to the project that uh, that they're currently evaluating. But the way the court wrote it, it left that discretion to the agency. By contrast, the Speed Act says agencies are not allowed to consider environmental effects, and not just environmental effects from other projects, separate in time and place, but just environmental effects, separate in time and place. So that's very relevant, for example, to consideration of greenhouse gases because greenhouse gases often have effects that are separate in time and place from wherever they're admitted. So just flagging that as a fairly major, change the Speed Act proposes. Another, major change the Speed Act proposes is about judicial review.
So this is one of the first real efforts of Congress to conscribe the kind of, judicial review that NEPA can receive. We haven't talked about litigation much, but in general, people who object to a given project, are allowed to say that a NEPA document did not sufficiently consider the environmental effects of that project, and therefore the NEPA document must be changed before the project can go forward. And these suits are very frequently successful. The current pending bill says. Guess what? First of all, we're gonna put time limits on statute of limitations. We're gonna shorten that for when people can bring these kind of suits. We're also gonna put time limits on how long the judge can take to think about these suits, sort of rushing that through a little bit more.
And then most consequentially, they say, guess what? Now? A judge, even if you decide the plaintiffs are right. Even if you decide that the environmental effects were not adequately considered for this project, you are no longer allowed to stop that project. You can send it back to the agency so the agency can better explain those effects.But the project gets to keep on moving. And as people listening might guess, that raises a big question, which is why an agency would uh, trouble itself to comply with NEPA in the same way it does today. Because even if they lose now, there there aren't consequences for the project. The project gets to keep going, uh, even if the NEPA review was unsatisfactory. There are more changes, but those are some I wanted to highlight.
[00:14:38] Katie Perkins: So Natalie, can you kind of go into some of these executive actions like Unleashing American Energy and things and how all of that could possibly impact, you know, topics that wildlife professionals would be interested in.
[00:14:50] Natalie Jacewicz: Yeah, of course. So, while the most durable form of change you can have to a given policy is through legislation. You can also create a lot of change through executive orders. And executive orders are easy for an administration to use because all it requires is the President writing up a memo and then publishing that memo and that has the force of law.
Of course, then it means, uh a future president can come in, write their own memo and undo that past executive order. But the Trump administration this time around, published a bunch of executive orders, including some related to NEPA. Specifically one of the executive orders, that was put out very early in the administration was about nleashing America's energy, quote unquote. And instructing agencies to, among other things, figure out how to speed up NEPA or find, exceptions to NEPA to ensure that more energy got developed and in fact, the administration has used,an alleged energy emergency as reason to dramatically shorten a lot of the timelines that are required, for environmental review. Now, uh, tellingly or interestingly, I suppose the administration defines energy to exclude wind and solar. So those do not qualify for any of this expedited effort. And in fact, separately, the administration ordered agencies to stall all offshore wind projects, even the ones that completed NEPA, to reevaluate the NEPA analyses and see if maybe they in fact had not complied with NEPA adequately. So the administration is kind of taking this two-prong approach that's pretty opposed, opposed to each other. For most energy, it's trying to minimize NEPA as much as possible based on an energy emergency. But in the context of wind energy and specifically offshore wind energy, the administration is using NEPA as a reason to slow down projects.
[00:16:52] Katie Perkins: Right. Yeah. Those changes are pretty huge and, and I think we can see why, as wildlife professionals and folks interested in wildlife conservation, that this would maybe concern us. And so let's talk a little bit more about, you know, how does this, like what's a practical implementation of this? Like, with these NEPA changes, how would that affect the say that the public can have on say, like a big pipeline through a huge swath of like protected land. What would that look like now if this, these NEPA changes were to go through?
[00:17:21] Cameron Kovach: Yeah, so I mean, The legislative changes that Natalie talked about haven't been implemented yet, and so as of right now, it would be relatively minor changes in terms of how NEPA would be implemented with the caveat that there have been some other changes that aren't legislative, but are on the regulatory side.
And that is earlier this year, the Council on Environmental Quality published a final rule, resending all of their implementing regulations. And then they, they referenced the, the Chevron deference as justification for the removal, which I spoke about earlier. and so what does that change look like?
CEQ or the Council of Environmental Quality previously had, implemented NEPA regulations government wide, and now that those regulations are gone, there's a decentralized approach to implementing, NEPA that will now focus on agency specific implementing rules. And so while everything is, relatively the same right now they're still following, uh, agencies are still following the NEPA processes that are in place you're gonna start to see some divergence from this point moving forward where agency NEPA implementing regulations or procedures are going to start to vary and court interpretations are gonna start coming into to play there. And so right now not much is changed on the project front, but as we move forward, we could see deviation from agency to agency, and we could see some of these legislative proposals, come into play here if they do get passed into law.
[00:19:00] Natalie Jacewicz: It's a sort of interesting point because. for the longest time the Council on Environmental quality CEQ based out of the White House was a sort of central point that controlled all NEPA regulations for all agencies. And, if you don't like those regulations, I guess you can blame CEQ. And it maybe seems like good news if CEQ no longer, claims the authority to issue such regulations. On the other hand, you know, it's not clear that you're going to automatically have an easier system for permitees. In a world where all these different old regulations from individual agencies start popping up, all the agencies are creating their own regulations.
So now if you're, trying to build a project, you have to talk to your lawyer and say, don't only just know this one set of regulations, but know, you know, the four different kinds of regulations that might be implicated. So just think, you know, that's worth underlining.
[00:19:57] Katie Perkins: We'll be right back after this short message. The Wildlife Society bridges the gap between science, advocacy, and action turning research into real-world conservation.
Our network and resources educate policymakers and the public on key environmental issues, ensuring that science stays at the center of wildlife management. All TWS members can be a voice for our profession by taking part in our Conservation Affairs Network. Learn more at wildlife.org/policy.
Talk about trying to make NEPA more efficient, but it sounds to me like this is not accomplishing that. Is, is that a fair critique of the old NEPA, that it's not efficient, and are these changes going to make it more efficient?
[00:20:41] Natalie Jacewicz: I don't think that the old NEPA statute was perfect, and I think there are some good arguments that, you know, that it doesn't make sense to subject all kinds of projects to the same type of intensive environmental review. Cameron already made the point. It's not just that NEPA applies to, you know, leasing a plot of land to drill oil on federal land. It also applies to habitat restoration, um, projects that we might think of as more clearly beneficial to the environment don't necessarily get a pass.
And a lot of people have talked about this in the context of clean energy, that maybe clean energy should be given some kind of advantages through environmental review, because it's really slowing down projects to have to go through the full review. That said, I think all of these different complaints that are quite right, widespread at this point about NEPA's efficiency, that shared language of efficiency hides a lot of deeper disagreements that people have about what's broken with NEPA.
So some people don't like NEPA because they think that we should be building a lot more renewables, but absolutely not. Uh, a lot more fossil fuel based kinds of, projects. Other people think we should absolutely be building a lot of fossil fuel projects. And that's why we don't like NEPA. Um, there are objections to the fact that it's not substantive instead it's procedural, going back to that distinction we had earlier. Um, objections that maybe it's just too slow 'cause agencies need more resources versus objections that agencies are not using the resources they have efficiently. I could go on. There are so many different objections and they all call for different kinds of solutions.
And the shared language of just, you know, NEPA's too burdensome, doesn't unmask those differences and until legislators really dig into exactly what is quote unquote broken about the, you know, environmental permitting, regime, they're not going to be able, I think, to make very effective, reforms happen for anybody.
[00:22:42] Cameron Kovach: I fully agree. and so a lot of what you have brought up is legislative focus, it's interest groups, it's different uh, different needs of stakeholders, and that is a policy discussion best left to Congress, the legislative branch. And that is essentially what we communicated to CEQ when they initiated this rulemaking process.
So they pointed to all of these court cases that said, okay, CEQ doesn't have rulemaking authority, but in each of those cases, the courts didn't vacate all of the regulations for neba. They stopped short of doing that, because it would amount to what the courts described as political reform. So they called upon Congress to address it.
They called upon Congress to challenge it. And what I see, CEQ kind of stepping into the void that was left there, I see it as trading a one separation of power question for another.And so in order to get this more durable, approach, in order to ensure that all of these interests are taken into account in a legislative approach, I fully think that, this process should have waited for congressional engagement, which we are seeing through for, through legislation like the Speed Act that you referenced earlier.
[00:23:59] Katie Perkins: So, Cameron, you touched on it a little bit, but can you talk a little bit more about what The Wildlife Society has responded to in these proposed changes through our Conservation Affairs Network, um, and our other kind of policy branches.
[00:24:11] Cameron Kovach: Sure. yeah, so TWS has submitted comments to CEQ, formal comments through the Administrative Procedures Act and regulations.gov, on these changes that are being proposed and we are currently assessing, the legislative atmosphere around NEPA right now. As Natalie mentioned, we have the SPEED Act, which is, has passed the house. We also see NEPA showing up as, in things like Fix Our Forest Act, where there's an expansion of categorical exclusions. And so TWS has not engaged strongly on the legislative front yet, but we are certainly going to work with our Conservation Affairs Network, which you referenced earlier, to ensure that the best interests of wildlife professionals are reflected in these discussions and in the legislative reforms that are being considered.
[00:24:59] Katie Perkins: Looking ahead, what's something that you think people listening should understand about NEPA and the changes that we might see?
[00:25:07] Cameron Kovach: I mean, moving forward, I think it's essential to understand that NEPA is the primary mechanism for ensuring that science-based decision making occurs at the federal level. And this is very consistent with The Wildlife Society's standing position statement on, the use of science and policy and management decision, which states that the role of science and policy and decision making is to inform the decision process.
So again, that kind of procedural component that we mentioned earlier. Rather than to prescribe a particular outcome. Again, going to that substantive element. And so when I think about what to look for in the future, like that process only works when the full range of management options have been openly acknowledged and considered.
If we move too far into curtailing what type of information can go into this process, then we are, limiting the, considerations that go into decision making. And then if we move, to restrict who can challenge, this process or decision making, then we are limiting the remedies that are available through, through NEPA.
[00:26:16] Katie Perkins: Natalie, is there anything else you think we should be on the lookout for and kind of keep our, our eyes on?
[00:26:22] Natalie Jacewicz: I agree with everything that Cameron just said, and I guess I would say that so far in my personal opinion, I've been seeing kind of two kinds of reforms enacted or proposed about NEPA. There are these kinds of you know, reforms like the Speed Act that seem to be defanging, environmental reviews so much that I'm not completely sure why we still have environmental review. It almost seems to me like it would be more efficient to just repeal it. On the other hand, there are these, reform efforts that are just about, you know, page limits, time limits, making things faster, and then sometimes exempting, um, certain kinds of projects from from review. I have doubts about how effective those kinds of reform projects will ultimately be, just because there's only so much an agency can do to get faster. Um, and as you exempt various projects from environmental review because they're important to society in some way, shape, or form, one does start to wonder. Do we have a very successful environmental review regime? If anytime something gets to be really important, it starts to be, uh, exempted from environmental review. Isn't that kind of an implicit indictment that environmental review isn't functioning very well if we don't trust it with any, anything that's very important. But I think there are potentially good and exciting, you know, reform options out there. I just haven't seen them, you know, being hashed out much at the legislative level yet, unfortunately.
[00:27:56] Katie Perkins: Right. Cameron, what do you think TWS members and wildlife professionals should be paying special attention to? And maybe what are some ways that they can engage in all of these changes happening?
[00:28:07] Cameron Kovach: Yeah, that's a good point. I mean, one thing that I've heard, or I've seen a lot with the dialogue around NEPA is this notion that the changes being made are not only good for industry, but they're also good for the environment. And I just ask that our members think critically when they hear that, because there may be opportunities and there are likely are examples of ways when kind of a development project or an industry project has resulted in positive conservation outcomes. But in the course of things like our environments are stressed, they're stressed by, climate change, they're stressed by habitat degradation. They're all these stressors. and so to say that, alright, yeah, we're gonna speed up the amount of projects, potentially significantly affecting the quality of the human environment and our ecosystems are gonna benefit from that.
I don't see that and I don't believe it yet. And so just to think critically about some of these changes that are going to, or that are, are being proposed on an environmental law that has been a cornerstone of, of conservation for the past 50, close to 60 years now.
[00:29:19] Katie Perkins: Gotcha. Well, Natalie Cameron, thank you so much for joining us today and for talking all things NEPA. I know I certainly learned a ton. If people listening wanna learn more about this, where can they go to engage with TWS or can you think of any resources maybe you could share with, people if they wanna dive more into NEPA and the reforms happening around it?
[00:29:38] Cameron Kovach: I would say, get engaged if you're a member of TWS, get engaged through your local Conservation Affairs Network and then check, wildlife.org on a regular basis. We're constantly putting up policy articles, um, different resources through our, our Conservation Affairs Network toolkit. and yeah, just stay informed.
[00:29:56] Katie Perkins: Awesome. Thanks y'all.
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