.webp)
Why housing remains unaffordable and out of reach for so many
The Big Picture
We’ve talked about the YIMBYs and NIMBYs before and how the Yes in my back yard (YIMBY) people versus the Not in my backyard (NIMBY) people can complicate housing affordability. This time, we will add a new acronym to the list of reasons housing can be so unaffordable in some areas of the country. That Acronym is NEPA or the National Environmental Protection Act of 1969.
NEPA is an umbrella law, underneath which are the Clean Air Act, Endangered Species Act, Clean Water Act, and others. When beginning this explainer, the author thought this would be a much simpler topic than it actually is. Instead of a clear line of cause and effect, NEPA and NEPA case law have created a Gordian knot of regulation that opponents can weaponize to stymie almost anything.
To ELI5, NEPA requires an environmental review of any action by a federal agency. These reviews come in three groups: categorical exclusions (a CE, i.e., these actions will not have an environmental impact like payroll or HR decisions), environmental assessments (an EA, we’re not sure this will have an effect, but we’ll look into it), and the Environmental Impact Statement (an EIS, oh this is going to have an impact and here’s 8,000 pages to explain it).
The more stringent analyses required by NEPA generally apply to infrastructure projects like highways (maritime or interstate), energy projects, and actions of the US Forestry Service managing national forests. While NEPA originally only applied to major federal actions, the courts have decided that the distinction of magnitude between major and minor is irrelevant. This distinction was tossed in Minnesota Public Interest Research Group v. Butz.
Finally, the adoption of NEPA at the federal level has spurred the adoption of similar legislation at the state level, including the Minnesota Environmental Rights Act and the California Environmental Quality Act, among others.
Zooming In
The thing is, though, that NEPA does not require any mitigation of the environmental effects of a decision made by a federal agency. So, instead of protecting the environment or causing federal projects to be redesigned to be more environmentally friendly, NEPA generally only extends the timeline for project completion. While some successes exist, the general trajectory is toward longer completion times and more extensive documentation. The Institute for Progress notes, “The average EIS completion time across all agencies is currently at 4.5 years, with some agencies taking significantly longer.”
Agencies engage in long timelines and even longer documents to defend against litigation. Not environmental protection. Eli Duardo explains that NEPA brings higher scrutiny from the courts than the usual Administrative Procedures Act. “The standard of review typically applied when there is no question of statutory interpretation is whether the decision is “arbitrary, capricious, or an abuse of discretion.” Duardo further explains, "Because NEPA made the EIS a required part of administrative procedure, the arbitrary and capricious standard applies to the EIS itself, not just the federal action.” Practically speaking, this makes every word of the EIS subject to judicial review, not simply the agency's final determination.
At this point, you may be asking, “That’s cool, Eric, but what does this have to do with the cost of housing?” I'm glad you asked. Remember that “any federal action” from earlier? Let’s explore that further.
Returning to Eli Dourado:
So far, the discussion of federal actions and the idea of agencies preparing environmental documents may give the impression that NEPA applies mainly to federal projects, like the construction of an interstate highway.
This is not the case.
Federal actions include any agency decision, including the granting of a permit to a private party.
This expansive interpretation of federal action opens up opportunities for housing involvement. Does a private builder need to get a federal permit for a senior center or affordable housing project? Then, guess what? That permit decision is subject to NEPA, and unless there is already a CE from a rulemaking process or a specific legislative action establishing that CE, there’s probably going to be an EA with the possibility of an EIS. With that assessment, there is ample opportunity for someone opposed to the project for any reason to jam the process with a NEPA lawsuit.
Increased documentation results in more time and money being spent producing these reviews, which ultimately leaves the project and the community no better off. There’s no new housing project, and the status quo remains. Meanwhile, the project could have not only mitigated its own environmental impact but also included aspects that would have been a net positive for the area.
The EA can result in a finding of no significant impact (FONSI, not that one), and we’re off to the races for the housing project. Now, if there is a finding of environmental impact, the agency can issue a mitigated FONSI where the mitigations included in the agency decision are designed to reduce the environmental impact to not significant. It’s worth noting that this process developed from rulemaking and case law. It doesn’t actually exist in statute.
Independent Lens
Independents who are concerned about an efficient government that can meet the needs of a growing population have valid reasons to worry about a process that NIMBYs can exploit to prolong the process to the point where everyone ultimately gives up. Should environmental concerns be acknowledged? Absolutely. Should they also be mitigated wherever feasible? Again, yes. Should the process be subject to hijacking just because Jim on Verner Street opposes the project due to his preference for single-family homes in his neighborhood? No.
NEPA needs significant reform or elimination to enable agencies to make permitting and funding decisions, facilitating the construction of more housing. Independents understand that this is not an either-or situation where we must choose between development and housing or environmental protection. Instead, we view this as a both-and approach. We can achieve more housing alongside reasonable environmental protections, preventing Jim and friends from engaging in strategic litigation that delays the process until everyone grows weary of court appearances.
Additional Resources
- Building Cleaner, Faster, The Aspen Institute, Energy & Environment Program
- How NEPA Works, Brian Porter of Construction Physics
- How to Stop Environmental Review from Harming the Environment, Institute for Progress
- Much more than you ever wanted to know about NEPA, Eli Dourado of The Center for Growth and Opportunity at Utah State University
- Never Eliminate Public Advice: NEPA Success Stories, Elly Pepper of the National Resource Defense Council
- The big NEPA roundup, Noah Smith of Noahpinion
- The Case for Abolishing the National Environmental Policy Act, Jeremiah Johnson of LiberalCurrent
Footnotes
NEPA and other environmental laws form a broad, interconnected web, and the associated case law is similarly vast. This post serves as only a starting point and lacks much of the nuance necessary for a comprehensive discussion of the topic. Countless books about the relationship between environmental protection and development could be written and rewritten. In its brevity, this post aims to illustrate a connection and provide a basis for dialogue where YIMBYs, environmentalists, and independents can come together and advocate for improved processes to achieve shared goals.
