Legal scholars and tribal advocates urge caution: preserve public participation and agency capacity in any NEPA rewrite

Several legal and academic witnesses urged the committee to avoid hasty statutory rollbacks that would curtail public participation or tribal consultation.

Andrew Mergen, faculty director at Harvard Law School’s Emmett Environmental Law and Policy Clinic and a former U.S. Department of Justice NEPA litigator, described NEPA as a ‘‘look before you leap’’ statute that many state and international systems emulate. "Looking before you leap makes a lot of sense," Mergen said, and he cautioned that NEPA is often blamed for delays caused by other substantive statutes such as the Clean Water Act or the Endangered Species Act.

Mergen told lawmakers that recent developments — the Fiscal Responsibility Act’s procedural limits and the Supreme Court’s 7 County decision — have already narrowed judicial remedies and should be allowed to operate. He said, however, that reductions in agency staffing and a fragmented CEQ role create new headwinds to efficient implementation. "Agency cuts call that into question," Mergen testified, noting that deference to agency expertise depends on agencies having the capacity to "show their work."

Representative Susie Lee (D‑Nev.) and other members raised concerns about new Department of Interior alternative arrangements and a secretarial memo that elevates Interior approvals for some wind and solar permits to higher levels. Lee said raising decisions to the secretary's level and compressing consultation timelines risks undermining tribal sovereignty and meaningfully short‑circuiting Tribal Historic Preservation Officer input. Mergen and other witnesses warned that rushing tribal consultation, for example giving seven days to respond, produces "huge" barriers for tribal governments and tribal historic preservation officers.

Witnesses and some Democrats also warned that removing or sharply curtailing judicial review would strip communities of recourse if agencies ignore statutory obligations. Mergen emphasized that although litigation can delay projects, it also improves many projects through public input; courts rarely enter injunctions, and the 7 County decision reduces the likelihood of routine project‑stopping injunctions.

Recommendations from legal and community‑concerned witnesses included: preserve meaningful public and tribal engagement; invest in agency capacity and institutional knowledge rather than only adding headcount; deploy technology and e‑permitting to make records available to the public; and allow recent judicial and administrative changes time to affect practice before enacting new statutory rollbacks.

Sources: Testimony of Andrew Mergen; questioning and remarks by Rep. Jared Huffman and Rep. Susie Lee; committee transcript.