Heralded in 1970 as the nation’s environmental Magna Carta, the National Environmental Policy Act’s (NEPA’s) luster seems faded and its future uncertain. While Trump Administration initiatives threaten to diminish further and perhaps even dismantle aspects of NEPA, this Article chronicles how the current assault merely continues NEPA’s unfortunate trajectory, examining how the courts, the U.S. Congress, and the executive branch each have whittled away at the Act. NEPA consequently sits at a critical juncture: it could soon fade away or it could hew back toward its original promise. The Article urges the latter path, and proposes two atypical and one oft-recommended changes. First, the Council on Environmental Quality (CEQ) ought to be charged with authority to oversee the development of environmental documents. Next, CEQ ought to require that agencies engage in balancing environmental harms against the benefits of a proposed action. Finally, the NEPA process should better incorporate the post-decision ability to monitor and adapt as new information and effects are understood.

One of the most important and transformative mechanisms the U.S. Congress has ever created to protect the environment is under assault from the Donald Trump Administration. The National Environmental Policy Act (NEPA) ushered in the modern era of U.S. environmental law. In early 2020, the Council on Environmental Quality (CEQ) issued proposed regulations that would overhaul, and fundamentally enfeeble, NEPA and its existing regulations. This Comment provides a brief introduction to NEPA’s purposes, structure, and mechanisms; addresses the narrowed scope of agency obligations that would result from the proposal; and describes how CEQ’s proposal would thwart public participation in the NEPA process, thereby impairing NEPA’s most fundamental goal: fostering deliberation and democratic participation to improve the government’s capacity to promote social welfare.

The National Environmental Policy Act (NEPA) plays a crucial role in the authorization and approval of more development projects than any other federal law. Proponents believe NEPA protects communities and the environment from potentially detrimental projects, while critics counter the Act prevents timely review of important infrastructure projects. At a NEPA 50th Anniversary conference on December 17, 2019, the Environmental Law Institute hosted a panel that looked toward the Act’s near and distant future, exploring recent permitting developments, the project approval process, collaboration with regulatory agencies, legislation that may affect NEPA, and issues related to greenhouse gas emissions. This Dialogue presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.