What “Substantive vs. Procedural” Misses
It's cost-benefit all the way down
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.
Most permitting reform advocates nevertheless believe—and I think correctly—that CEQA is terrible. This is not just because of the law’s burdensome procedures, but because its substantive requirements completely fail any reasonable cost-benefit analysis. Specifically, while CEQA forces consideration – and, by extension, mitigation – of the environmental impacts of building, it rarely requires meaningful consideration of the environmental impacts of not building.
For instance, environmental groups recently used CEQA to delay critical repairs to Santa Cruz’s Municipal Wharf by arguing about construction impacts, with the judge ruling that the city had to rescind its approval unless it could prove that "its additions would not significantly impact the aesthetic and recreational value of the wharf." This was a substantive decision—the building in question would have impacted sea lion viewing holes. But when the wharf partially collapsed in a December 2024 storm, three people fell and sustained injuries; power equipment fell into the water, and will sit there for weeks. CEQA’s substantive requirements created precisely the damage that a proper cost-benefit analysis would have sought to prevent.
You can see this problem in less controversial laws, too. The Clean Air Act is popular, and for good reason. But its National Ambient Air Quality Standards (NAAQS)—the substantive set of standards that establish permissible levels of key air pollutants—must be set without consideration of economic impact, creating a one-way ratchet effect where the standards only get tighter over time. And while the Clean Air Act only requires EPA review of the NAAQS every five years, environmentalists have used litigation to force near-constant NAAQS review. As standards tighten, more areas fall into "nonattainment," where stricter rules make it exceptionally difficult to build new industrial facilities or expand existing ones. So while it's unlikely that the costs of ratcheting the NAAQS outweigh the benefits today, there will be a point where they do—and EPA will be prohibited from taking this into account.
Ultimately, the reason to favor substantive over procedural requirements isn't that all substantive laws are good—it's that clear, specific standards allow us to properly weigh costs and benefits while reducing gaming of the system. When environmental laws set unambiguous requirements, we can evaluate their outcomes, adjust based on evidence, and prevent both government agencies and private actors from exploiting procedural complexity. The procedural-versus-substantive frame has proven politically useful in building support for permitting reform. The greater challenge will be getting the substance right.
I think the two real lodestars of "substantive" protection are 1) narrow definitions of standing, and 2) judicial review of cost-benefit. Germany is usually the exemplar of good environmental law (until at least the late 90s). Their approach:
1. The only people with standing to sue over infrastructure were people who owned land that would be negatively effected. The remedy was generally ordering the agency to mitigate their project, and they only had to mitigate it to protect the rights of the litigant (as opposed to any broader environmental concerns.) Procedural defects were generally curable: the agency could just amend their environmental statement at any point without delaying the project.
2. Judicial review of environmental regulation generally centered around whether the proposed environmental protection was disproportionate to the social benefit being pursued. (Because, as above, procedural defects were curable.)
Susan Rose Ackerman has a book on this that is brilliant, except she concludes that the US is better than Germany.
In the US, this whole issue (wrongly) becomes part of the non-delegation discussion. But if Congress directly mandates outcomes that fail a CBA, that's no better than the EPA doing so. And perhaps worse, since it's harder to get judicial review of a statute than a regulatory action.