Will NEPA’s Golden Anniversary be Tarnished by the Trump Administration’s efforts to overhaul the long-established regulations?

Posted on November 18, 2019 by Brenda Mallory

As the 50th Anniversary of the National Environmental Policy Act approaches, we may be on the verge of one of the most significant regulatory revisions in the statute’s history. NEPA advocates—and all those who believe it is important for the federal government to have a robust tool to assess the impacts of its actions before commencing them—watch and wait with trepidation for the release of proposed rules substantially modifying the Council on Environmental Quality’s longstanding regulations governing NEPA practice.

What is the cause for concern? On October 11, 2019, CEQ submitted proposed regulations to the Office of Information and Regulatory Affairs within the Office of Management and Budget, to begin the inter-agency review process governed by Executive Order 12866.  CEQ’s proposal is highly anticipated because, in the name of “streamlining” and reducing “burdens” on industry, NEPA has been a target for reform since the beginning of the Trump Administration. The Administration’s emphasis on instituting shortcuts has far exceeded any focus on ensuring sufficient environmental review or public engagement. Through a series of Executive Orders, President Trump has directed all agencies, but particularly CEQ and OMB, to take steps to remove obstacles to infrastructure and energy development, among other priorities.

In January 2017, Executive Order 13766 focused on expediting environmental reviews and approvals for “High Priority” infrastructure projects. In March, Executive Order 13783 proclaimed a national interest in promoting the development of the nation’s energy resources while avoiding regulatory burdens that “unnecessarily” encumber energy production. In August 2017, Executive Order 13807 directed CEQ and OMB to take actions to promote streamlining and greater accountability in the environmental review process. Then, in June 2018, CEQ issued an advanced notice of proposed rulemaking soliciting comments on revising broad aspects of its NEPA regulations, from details on page limits to the definition of core, NEPA terms such as “significantly,” “reasonably foreseeable,” and “alternatives.” It was clear that every aspect of the regulations was open for discussion. CEQ received approximately 12,500 comments.

Since then, CEQ issued proposed Guidance on addressing GHG impacts, encouraging a narrow focus for review and offering a litany of reasons why only minimal qualitative analysis might be necessary (i.e., emissions are not “substantial,” it’s not “practicable,” or “the complexity of identifying emissions would make quantification overly speculative”). In addition, a number of agencies and departments have issued revisions to their internal rules and guidance that reflect these themes of reducing burdens and greater efficiency, with seemingly little concern about the impact on environmental analysis or public participation. For example, the Forest Service has proposed revisions to its regulations that, among other things, dramatically expand categorical exclusions and discourage site-specific analysis. BLM has issued a number of guidance documents on oil and gas development, oil and gas leasing reforms, and the NEPA document clearing process that shorten time-frames for analysis and eliminate public input. Finally, the Department of Homeland Security, in the name of border security, has issued waivers of many environmental review requirements.

What changes could be harmful from an environmental and public participation perspective?

The changes that have been implemented by the agencies referenced above as well as others are instructive on the type of revisions we can expect to see in CEQ’s upcoming proposal, although the revisions are likely to go farther and have the effect of imbedding these themes in foundational terms. The public should be on the alert for revisions that have the following impacts on the NEPA process:  

  • Eliminating the need for NEPA documentation and avoiding public process: These may include
    • Expansion of categorical exclusions, changing the administrative processes so exclusions can be established without CEQ oversight, and the removal of limitations on when categorical exclusions can be used;
    • Allowing multiple categorical exclusions to be used on one project;
    • CEQ adoption of a practice created by BLM known as the Determination of NEPA Adequacy (DNA), which would allow agencies to determine that existing NEPA documentation on tangentially-related actions eliminates the need for further environmental review or public process; and
    • Elimination or reduction of time-periods for scoping and public comment, making it difficult if not impossible for the public to engage.
  • Narrowing the scope of review associated with specific federal actions so that neither the agency nor the public can assess or understand the full impact of the action: Revisions that have this effect include
    • Discouragement of site-specific analysis and site visits;
    • Redefining what is considered a foreseeable effect of an action requiring analysis; and
    • Reframing what is within the agency’s discretion or authority.
  • Reducing the number of alternatives that need to be evaluated; and
  • Truncating consideration of appropriate mitigation measures.

As of this writing, it is not clear when the proposal will be issued or how much time will be allowed for comments, but unconfirmed rumors suggest it will be soon.

I encourage those interested in protecting this important tool for environmental assessment and public engagement to let their voices be heard. While striving for greater efficiency can be a laudable goal, NEPA was not intended to be a process for rubber-stamping government decisions. We should not allow NEPA’s ultimate goals to be subverted by false claims for good government.

The author is an ACOEL fellow and is the former General Counsel of CEQ.

What’s Up with Gundy?

Posted on November 14, 2019 by Allan Gates

Last summer the Supreme Court announced its decision in Gundy v. United States.  Conservative advocates had eagerly followed the case, hoping it would restore the nondelegation doctrine to the glory days of 1935, the year Schechter Poultry and Panama Refining Co. v. Ryan used the nondelegation doctrine to cut down a broad swath of New Deal programs.

The decision in Gundy disappointed conservative hopes, but only by the slimmest possible margin.  A plurality of four justices — Justice Kagan joined by Justices Ginsburg, Breyer, and Sotomayor — voted to uphold the statute in question, following the very tolerant nondelegation analysis the Court has used consistently for decades.  Three justices — Justice Gorsuch joined by the Chief Justice and Justice Thomas — voted to invalidate the statute using a new and much more robust nondelegation analysis.  Justice Alito concurred in the judgment reached by the plurality, but only because a short-handed Court did not have a majority of Justices willing to establish a new (or resurrect a very old) nondelegation standard.  His opinion openly invited a new nondelegation challenge once the Court has a full complement of nine justices.  Justice Kavanaugh did not participate in Gundy because he was not on the Court when it heard oral argument.

College fellow Lisa Heinzerling wrote a very perceptive blog post about Gundy last May, three weeks before the decision was announced, noting that the Court was lingering over Gundy longer than any other case that Term.  In retrospect, the timeline is even more interesting than Lisa could have known.  Gundy was argued on the first day of the Term, October 2, 2018.  It was decided at the very end of the Term, June 20, 2019.  Justice Kavanaugh joined the Court on October 6, 2019.  Presumably, Justice Kavanaugh was in the room at every conference in which the Court struggled over how to resolve its 4-4 split over nondelegation in Gundy.  When one considers this timeline, Justice Alito’s open invitation for another nondelegation challenge packs special punch.

The significance of the unusual timeline was not lost on Gundy’s counsel, a New York public defender who had taken Gundy’s case farther than anyone could have expected.  She promptly filed a petition for rehearing.  Rehearing in the Supreme Court is extremely rare, but Gundy’s public defender aptly noted that her request presented one of the few circumstances that has prompted the Court to grant rehearing in the past, namely a short-handed Court that divided 4-4 with a new justice in place who could resolve the split if rehearing were granted.

The timeline of the Court’s consideration of Gundy’s petition for rehearing is also interesting.  The petition was filed on July 11 and scheduled for consideration at the Court’s October 1, 2019 conference.  Following that conference, the Court relisted the petition for consideration at the October 11, 2019 conference.  Since then it has been relisted four more times.  Most recently the petition has been scheduled for consideration at the November 15 conference. 

As the Justices ponder Gundy’s petition for rehearing, it seems likely they know if rehearing were granted, the result would be different the second time around.  Among other things, the Court is probably considering how the general public would react to seeing the Court flip on a do-over of a high profile constitutional case solely because a new Justice joined the Court, particularly when that Justice was confirmed by a bare partisan majority after a bruising confirmation hearing.

It is worth noting that there are petitions for certiorari pending in Paul v. United States and Caldwell v. United States, cases identical to Gundy, that were being held pending the decision in Gundy.  The Court might mitigate the public appearance of a highly political flip by taking one of those cases as the vehicle for addressing nondelegation.

IMO 2020 – A Strikeout for Sulfur, but Black Carbon Is Still on Base

Posted on November 7, 2019 by Susan Cooke

Greenhouse gas (GHG) emissions from international shipping supposedly represent 2% to 3% of the world total, about on par with those emitted by Germany.  However, there are no GHG emission restrictions covering ships on the high seas.  Moreover, even the current limits on sulfur and NOx are far less stringent than those imposed in many developed countries, although things are about to change on the SO2 front.

That is about to change.  The International Maritime Organization (IMO), which is part of the United Nations, recently announced a new and more stringent standard, set forth in Annex VI  of the International Convention on the Prevention of Pollution from Ships (MARPOL).  On January 1, 2020, marine vessels must meet a 0.5% (by weight) sulfur-in-fuel standard or install scrubbers to meet that standard.  In addition, starting March 1, 2020, such vessels without scrubbers may no longer carry heavy fuel oil on board.  Even more stringent standards are already in place within so-called Emission Control Areas.  For example, there is a 0.1% sulfur-in-fuel limit for vessels operating within the territorial waters of Canada, the continental U.S., Alaska, Hawaii, Puerto Rico, and the U.S. Virgin Islands. 

Annex VI also contains provisions for lowering NOx emissions.  Marine diesel engines above 130 kW installed on a ship constructed on or after January 1, 2011 must meet so-called Tier II standards, and such diesel engines installed on vessels constructed on or after January 1, 2016 and operating in the U.S. and Canadian waters described above must meet the more stringent Tier III standards. 

It is expected that most vessels will utilize lower sulfur fuel rather than employ scrubbers.  This move away from residual fuel oil (known as heavy fuel oil or HFO) toward low sulfur blended intermediate fuels and lighter, more refined grades will have another salutary effect – a reduction in the emission of black carbon, the sooty material resulting from incomplete combustion of fossil fuel, which comprises a significant portion of particulate matter, an air pollutant.  And while black carbon has a lifetime of only days to weeks after its release into the atmosphere, its warming impact on climate, per unit of mass, is 460-1,500 times stronger than CO2.

In 2018 the IMO adopted an initial climate strategy targeting a 50% reduction in GHG emissions by 2050 from 2008 levels through a mix of proposed measures ranging from efficiency improvements to existing vessels, speed reductions, use of lower carbon fuels, methane and VOC emission controls, national action plans, and GHG reduction initiatives implemented at ports.  While black carbon is estimated to account for 7%-21% of the overall climate impact of international shipping, this initial strategy does not include any specific measures for reducing black carbon emissions.  However, an IMO subcommittee is now considering what action might be undertaken to address this pollutant beyond the ancillary effect of the new sulfur standard. 

One particular concern is the increased shipping anticipated in Arctic waters as ice recedes, and the deleterious impact of black carbon emissions from an increased number of vessels plying those waters.  Indeed, the impact of black carbon emissions is specifically noted in Par. 70, ANNEX 2, of the IMO Note regarding adoption of its Initial Strategy.   

A new ball game – or at least the warm-up for that game – is about to commence where various measures to control black carbon emissions will be tossed out for consideration.  While the winning strategy is expected to be several years in the making, one proposal garnering interest is the mandated use of distillate fuel in lieu of HFO, which can be paired with mandated use of diesel particulate filters to remove most of the black carbon.  But this strategy will be costly and may not make it to first base.  Consequently, in the inimitable words of Yogi Berra: “It’s tough to make predictions, especially about the future”.