One of the more interesting items still kicking around Congress is Sen. Joe Manchin’s bill described as “permitting reform,” which sounds boring, but is anything but.

Rather, it involves an issue of huge consequence: Whether we can rise to the challenge of climate change, or whether we will keep delaying needed infrastructure.

In most news stories, the West Virginia Democrat’s initiative is supposed to “speed up” issuance of oil and gas leases — something most other Democrats oppose — but its effects could be far more profound.

Although several laws are involved, the most important one is the National Environmental Policy Act (NEPA), which swept through Congress without a murmur in 1969 and was signed into law by President Richard Nixon.

The best-known part of the law is the section requiring “environmental impact statements” (EIS) for major projects that require federal permits. But NEPA is otherwise obscure — though powerful.

The best-known bills of that era — when the nation embraced its environmental priorities in a brief glow of bipartisanship — are the Clean Air Act of 1970 and the Clean Water Act of 1972, both sponsored by Maine’s Sen. Ed Muskie.

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The bills were practical; their effects visible and dramatic. The choking smog afflicting Los Angeles most summer days almost disappeared. Rivers nationwide, some so polluted with industrial chemicals they caught fire, became swimmable, and in some cases, drinkable.

NEPA’s legacy is far less clear. It was the brainchild of Sen. Henry Jackson (D-Washington), a dedicated conservationist, but one with a much different, less focused approach than Muskie’s.

Muskie didn’t trust federal agencies to properly address environmental priorities; instead, the Clean Air and Water acts tasked states and municipalities, using generous federal grants, with cleaning up their inadequate sewage treatment. Industry had to comply on its own dime, which caused lots of caterwauling, but compliance was eventually attained.

Jackson, heading a separate Senate committee, was trying to solve a different problem — conflict within the federal government. He had observed one federal agency, the National Park Service, trying to protect Florida’s Everglades through additional land purchases, while another, the Corps of Engineers, was facilitating projects that degraded it.

NEPA did solve that problem, but it also created a gargantuan system, based on the EIS, that has led to lengthy delays within the bureaucracy, and often even longer ones when decisions are appealed in court.

Environmental groups, though with limited resources, found they could tie up projects for years, often forcing cancellation. NEPA is one reason why nothing has ever been built on Sears Island, one of three state-owned ports, purchased earlier for industrial development.

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In the early 1980s, Gov. Joe Brennan gambled that NEPA wouldn’t apply to state projects, and lost. Another attempt perished during Gov. Angus King’s administration when a smaller project was also rejected by federal regulators.

The question is not whether any particular project is bad or good — though the rationale for the King-era rejection was shaky — but whether the nation is well-served by a regulatory process marked by excessive delays.

NEPA has been amended several times, sometimes by GOP Congresses seeking to slow down projects they don’t like. Now, Republicans know time is running out for fossil fuels, so they want as many projects to go forward before new, much needed, climate change regulations shut them down.

But Democrats, and their environmental allies, also realize that billions of dollars for solar projects and countless other actions to limit global warming must also run the NEPA gauntlet. The last thing we need now, when it’s highly uncertain we can even stop catastrophic warming, is to slow down the cures.

Manchin’s bill has extraneous and objectionable provisions, and won’t be attached to this week’s omnibus spending bill. A Republican version boosts fossil fuels openly; Democrats will never accept. The bill’s best chance is a lame duck session; the need for reform remains incontestable.

Five decades ago, both Muskie’s and Jackson’s bills seemed all to the good. But the Maine senator’s approach — ably amplified by his successor, George Mitchell, through new legislation — has stood the test of time.

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Jackson’s inside-the-bureaucracy approach has had more equivocal results. Yes, it has prevented some bad projects from being built, but it’s also scuttled good ones. And the tortuous path from proposal to implementation incurs high costs.

One reason it costs so much more to build transportation and energy infrastructure in the U.S. than in Europe is our excessively bureaucratic procedures.

Manchin’s bill may not make it, but if it doesn’t, we’ll still have to deal soon with NEPA’s flawed legacy.

Douglas Rooks, a Maine editor, commentator and reporter since 1984, is the author of three books, and is now researching the life and career of a U.S. chief justice. He welcomes comment at drooks@tds.net

 

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