In this five-part blog series, ConservAmerica fellow Alina Voss will be taking a closer look at permitting reform.
Part 2: What NEPA Was Supposed to Do, and What It Became
President Richard Nixon signed the National Environmental Policy Act on January 1, 1970. The text of the statute is short. Its operative requirement is that federal agencies prepare a detailed statement on the environmental impacts of major federal actions and the alternatives to them. Read in 1970, NEPA appeared to be a disclosure law. It required agencies to think about consequences before they acted. It did not give any party a veto.
Five and a half decades of case law turned that disclosure statute into something else. Litigants learned that the easiest way to stop a project they did not like was not to challenge it on the merits but to challenge the adequacy of its environmental impact statement. Did the agency consider every reasonable alternative? Did it estimate every reasonably foreseeable downstream effect? Did it analyze cumulative impacts at the right geographic scope? Each new question multiplied the length of the document. Federal EISs now run thousands of pages and take a median of 2.4 years to complete after a notice of intent. Highway EISs have averaged more than seven years.
The cost of that drift is borne by anyone who needs to build, restore, or remediate something. It is also borne by the agencies themselves, which now spend a substantial share of their professional capacity defending paperwork rather than managing land.
In May 2025, the Supreme Court issued a decision that pushed back against this drift. In Seven County Infrastructure Coalition v. Eagle County, an 8 to 0 opinion authored by Justice Kavanaugh, the Court held that reviewing courts must give substantial deference to agencies on the technical judgment calls inherent in environmental review, including identifying impacts, evaluating alternatives, and determining the scope of indirect effects. The Court also held that the Surface Transportation Board did not need to analyze upstream oil production or downstream refining when approving an 88-mile rail line. The decision was, as one law firm put it, a course correction.
A course correction is not the destination. Seven County tells lower courts to defer more to agency expertise. It does not impose deadlines on those agencies. It does not change the scope of major federal actions that trigger NEPA in the first place. It does not narrow the universe of plaintiffs with standing to sue. It does not address the volume of duplicative review across federal, state, and tribal authorities that any cross-jurisdictional project must navigate. Most importantly, it does not bind any future court that wants to read the statute differently. The next administration’s lawyers, or the next circuit panel, can pull the dial back without changing a word of NEPA.
That is why Congress still has work to do. Statutory reform is more durable than judicial doctrine and easier to predict in advance. A Congress that wants to keep what NEPA was actually for, namely informed decisions and public engagement, while pruning what it became, namely indefinite litigation leverage, can do so without weakening any environmental protection on the books.
A short list of what statutory reform should accomplish includes hard timelines for environmental review with consequences for missing them, a single lead agency with authority to coordinate the federal record, a tightened definition of indirect and cumulative effects consistent with Seven County, and a focused statute of limitations on NEPA challenges to give project sponsors finality.
NEPA was meant to make agencies think before they act. It now too often prevents them from acting at all. Restoring the original bargain is not deregulation. It is fidelity to what Congress wrote.