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 13783proclaimed 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 rulemakingsoliciting 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.