This piece originally appeared at Green Tape.
You'll often hear permitting reform advocates criticize NEPA for being a "procedural" statute.
The argument goes something like this: There are two types of environmental laws, and the distinction matters enormously. Substantive laws, like the Clean Air Act, set specific standards and measurable outcomes for environmental protection. These laws are good, and the results prove it: the Clean Air Act has reduced air pollution by 77% since its inception while the economy has grown nearly threefold. By contrast, procedural laws and provisions—NEPA, Section 106 of the National Historic Preservation Act, Endangered Species Act Section 7 Consultation—merely dictate bureaucratic processes that agencies must follow without guaranteeing any environmental benefits. These laws are bad.
This framing is useful, insofar as it reveals the absurdity of NEPA-like laws that pile on paperwork without offering material environmental protections. But I don't think it tells the whole story. The procedural-versus-substantive distinction implies that environmental regulations are good so long as they establish concrete standards and outcomes. This is obviously not true.
Consider the California Environmental Quality Act (CEQA), California's state analogue to the federal NEPA. CEQA is famously more stringent than its federal counterpart and has become a major obstacle to housing, transit projects, and energy development across the state. And unlike NEPA, CEQA has substantive requirements, prohibiting agencies from approving projects with significant environmental impacts “if there are feasible alternatives or mitigation measures available.” In other words, CEQA isn't just about process—it has teeth.
