Posted on February 19, 2020 by Scott Fulton
It seems to be the season for 50th anniversaries. The National Environmental Policy Act, signed into law by President Nixon on January 1, 1970, is now a half-century old. The first day of a new decade was no doubt seen as a symbolic moment for NEPA’s signing, but I wonder whether the statute’s framers could have envisioned the full reach of that symbolic step.
NEPA signaled the beginning of the modern environment era and was the first of many actions that would redefine our orientation toward the environment and attempt to march the country toward a more sustainable future. It also set an important marker for the rest of the world, with environmental impact assessment becoming one of the most imitated and enduring features of the global environmental legal architecture.
Now, 50 years later, change is in the air, as the Administration considers a rather sweeping rewrite of NEPA’s implementing regulations, the comment period for which closes March 10, 2020. The proposed rule may at first blush look like a walk through traditional NEPA terrain. Because it is set out as a wholly revised chapter, it takes a good deal of work to discern where language has been changed, moved, or excised. To that end, the Environmental Law Institute released the Practitioners’ Guide to the Proposed NEPA Regulations to assist commenters and others in determining what changes have been proposed and how they may relate to familiar NEPA regulatory concepts. On close inspection, the changes are dramatic and potentially far-reaching. Here are some that in my view deserves a close and searching look.
Importantly, the term “cumulative” has been excised from every point in the proposed regulations, except for the addition of a sentence stating, “Analysis of cumulative effects is not required.” Similarly, categorical exclusions would no longer need to be evaluated for cumulative impacts. Under the proposal, cumulative and indirect impacts are not to be used in determining the threshold of significance (whether an EIS is needed), and are no longer to be analyzed in EAs or EISs.
While climate change is never mentioned in the proposal, the restriction on cumulative or indirect impacts has obvious significance in that context. But cumulative impact concerns under NEPA predated worries about climate change. How would these limitations affect consideration of environmental justice issues? How would they affect watershed, air shed, and landscape protection considerations?
Further limitations on the scope of review will prevent agencies from considering alternatives not within their own jurisdiction. The rule would interpret DOT v. Public Citizen to prohibit agencies from analyzing or considering “any effects that the agency has no authority to prevent.”
The proposed rule would allow applicants themselves to prepare environmental impact statements and assessments (under guidelines from federal officials and ultimately signed by a federal official); would no longer require the lead agency to select the contractors performing EISs and EAs; and would remove existing conflict-of-interest requirements for contractors.
In a novel procedural innovation, the proposed rule would require the lead federal agency to issue a finding itself at the end of the NEPA process that it has adequately considered all “alternatives, information, and analyses submitted by public commenters” and states that this finding and “certification” would create a “conclusive presumption” that is binding on the courts.
The proposal encourages federal agencies to require that commenters and public opponents of an action post a financial bond for a stay if they contest a final agency decision.
Finally, the proposal would expressly preempt existing and future agency NEPA requirements, thus effectively setting a ceiling on federal environmental review: “Agency NEPA procedures shall not impose additional procedures or requirements beyond those set forth in these regulations.”
There are many other changes scattered across the proposed rule. Some of these are important alterations intended to tighten time lines and increase interagency coordination and accountability. At bottom, if promulgated in this form, the proposed rule may well serve to exclude from NEPA review altogether some actions that would have heretofore gone through the process, as well as eliminate many environmental effects that agencies typically analyze.
In this sense, the proposal stands in fairly sharp contrast to prior reform efforts aimed at making NEPA review function more efficiently and effectively. This much is clear. What emerges from this proposal may well determine NEPA’s fate and role in the next 50 years.