The CHIPS and Science Act is Great, But Exempting Environmental Review Is Not
In August of 2022, President Biden signed into law the CHIPS and Science Act (CHIPS)to support federal science agencies. The most highly publicized part of the law was related to CHIPS, to bolster research, domestic manufacturing, and workforce development for semi-conductors to onshore this critical industry. Make no mistake, this was an important bi-partisan achievement at a time when bi-partisanship is generally on the rocks. Re-invigorating domestic manufacturing of semi-conductors is the right thing to do.
This past week, the New York Times reported that the Biden Administration is about to sign a bill that would weaken environmental review under the National Environmental Policy Act (NEPA) for some of the projects supported by CHIPS to speed up the buildout of manufacturing facilities. That is the wrong thing to do. It is not the speeding up of review that is wrong. Exempting projects from the NEPA process to “speed” them forward is a bad approach.
NEPA is one of the only ways for the public to be provided comprehensive information on the expected environmental impacts of a project permitted by a federal agency or supported by federal funding. It is the only opportunity to have the proposer of the project consider and publicly outline alternative locations, designs and operations. And it gives the public a real opportunity for input. Does that take time? Yes! Does it need to take as long as it often does? No.
NEPA review relies on several key factors in my experience. It requires the project proposers, both government agencies and private industry, to be open and clear in providing information for analysis and to do it in a timely manner. In my experience, that is the first and most important hurdle and is often a stumbling block. When I worked at NOAA, we were often criticized for being too slow to analyze the information that the applicant refused to give us. Yes, you read that right. It was our fault there was a delay because we weren’t provided the information. So, a lot of the “speeding up” is in the hands of the applicants. They can be really fast at asking for funding. However, that doesn’t extend to providing information that allows environmental reviews of their project. Again, other agencies or private companies are guilty of this.
Secondly, reviews can be done more quickly, given available information, if they are a priority for agencies and staffed appropriately. Review can take more time, or it can take more money and less time. Put people on it, either agency staff or contractors. And make the deadlines as tight as is feasible.
Third, use the available information from other reviews effectively. Again, from my experience, it almost feels like each NEPA review starts with a clean sheet, as if no other similar projects have been done before. That makes little sense. Perhaps a facility exactly like that proposed hasn’t been done before or in a similar location, but there must be commonality with other projects and their expected impacts. Reading NEPA documents often feels like a re-invention of the wheel, and to torture the analogy goes round and round and round. Just because reviews have been done a certain way before doesn’t mean that is the only way. Concise is better. Focused is better. Incorporating other information by reference instead of repeating it is better. Readable is better.
Fourthly, the public process is challenging but absolutely vital. A NEPA review requires a “preferred” alternative and several other options to be considered. It doesn’t mandate a result. But shouldn’t the community have a chance to at least hear and comment on the impacts? I would want to in my community. How about you? NEPA doesn’t require that all the impacts be avoided. It does require that you say what you think they are. And, of course, it encourages a reduction in impact if possible – hence the alternatives.
Ok, maybe the companies or the agencies want to design a project and just move forward. But there are lots of challenges and delays in getting these projects going. It isn’t as though NEPA is the only challenge. What about building codes? No one is talking about exempting projects from building safety. Why exempt from considering environmental safety? After all, environmental impacts are really about public health and safety. They aren’t about the oft-cited but rarely done “tree-hugging.” Blaming delays on NEPA is a distraction.
So, if you want to speed up the process, speed it up! However, an exemption is not the same as speeding the process. It’s taking the wheels off. And in my opinion we always ignore environmental impacts at our peril – and the data proves it.