United States: Shiny, Happy NEPA: How The Administration Plans To Make NEPA More User-Friendly

On January 10, 2020, the White House’s Council on Environmental Quality (CEQ) issued a proposed rule that would substantially revise its regulations for implementing the procedural provisions of the National Environmental Policy Act (NEPA) for the first time in more than 40 years. The proposed rule would narrow the consideration of effects of federal decisions to those that it describes as reasonably foreseeable and clarify that non-federal projects with “minimal” federal funding or involvement are not “major actions” requiring NEPA review, in addition to other streamlining changes. With the proposal, CEQ hopes to “reduce unnecessary paperwork and delays, and to promote better decision-making consistent with NEPA’s statutory requirements.”

In particular, CEQ is proposing to consolidate the definition of “effects,” eliminating its references to indirect and cumulative effects with the goal of restraining courts from reading those terms so expansively as to include speculative effects, resulting in time-consuming litigation and delay. CEQ also proposes to change how effects should be interpreted, to be more in line with the Supreme Court’s opinion in Public Citizen, 541 U.S. 752, such that the effects must (1) have a reasonably close causal relationship to the proposed action or alternatives; (2) not be remote in time or geography; and (3) not include effects that the agency has no authority to prevent or would happen without the agency action.

One effect, if not the primary aim, of these proposed definitional changes is the exclusion of climate change considerations from NEPA reviews—lead agencies need only assess impacts tied directly to a project and not downstream impacts on climate or greenhouse gas emissions. This would streamline the analysis of certain large projects such as the Keystone XL pipeline, the construction of which has relatively little direct, immediate climate impact regardless of the overall impact facilitated by its operation.

Another key change would revise the definition of “major Federal action,” a threshold requirement for NEPA application, to projects receiving a certain level of federal funding or requiring federal agency approval. The proposed definition specifically does not include “nondiscretionary decisions made in accordance with the agency’s statutory authority” or “non-Federal projects with minimal Federal funding or minimal Federal involvement where the agency cannot control the outcome of the project.” In particular, the proposed rule notes that an example of a project that could be exempt from NEPA is an infrastructure project where a small percentage of federal funding goes to the design of the project, but the project is otherwise funded with private or local funds. These changes could significantly curtail the number of projects undergoing NEPA review.

Also of note, the proposed rule would narrow the range of alternatives that must be considered by defining the term reasonable alternative as “a reasonable range of alternatives” and those that are “technically and economically feasible and meet the purpose and need of the proposed action.” The proposed rule, while highlighting the role of participating agencies and the public, would restrict legal challenges by providing that “comments not timely raised and information not provided shall be deemed unexhausted and forfeited.”

Announcement of CEQ’s proposed changes sparked immediate reaction by key policy makers in Congress. In the House of Representatives, a bipartisan pair of Members—Reps. Diana DeGette (D-CO) and Frances Rooney (R-FL)—circulated a letter to their House colleagues urging opposition to the administration’s proposal that “ignores the full extent of the climate crisis.” Rep. Debbie Dingell (D-MI)—wife of the late Rep. John Dingell (D-MI), a principal architect of NEPA—vowed legislative action to halt or reverse the proposed changes, possibly through use of the Congressional Review Act (CRA) procedure to block implementation of a final rule. Rep. Raul Grijalva (D-AZ), chair of the House Committee on Natural Resources, which has jurisdiction over NEPA, expressed similar concerns. Key Democratic Senators—including Sen. Tom Carper (D-DE), the ranking member on the Senate Committee on Environment and Public Works (EPW), which has jurisdiction over NEPA—voiced strong opposition to the proposed rule.

On the other hand, Sen. John Barrasso (R-WY), chair of the Senate EPW Committee, applauded the administration’s proposal, stating “[t]he Trump administration is taking common sense steps to make the National Environmental Policy Act work better for the American people.” Sen. Lisa Murkowski (R-AK), chair of the Senate Committee on Energy and Natural Resources, also welcomed the effort to “propose a modernization of federal environmental review and permitting processes under [NEPA].” Similarly, the ranking Republican on the House Natural Resources Committee, Rep. Rob Bishop (R-UT), lauded the administration’s efforts to fix “America’s broken environmental review and permitting process.”

Given the central role and long history of NEPA in environmental reviews of major federal actions, Congress likely will conduct detailed oversight of the rulemaking process. Given the timing of this announcement less than 10 months before presidential and congressional elections, the issue likely will receive significant policy and political attention this year, and into the next administration and Congress in 2021.

EPA is accepting comments on the proposal until March 10, 2020, and has scheduled public hearings in Denver and Washington on February 11 and 25, 2020, respectively. Project proponents should generally welcome the changes as they will limit the number of projects subject to NEPA review and are crafted to streamline and expedite the review process for those projects still needing review. Others, however, may see a significant downside in an attempt to eliminate from federal consideration the climate impact or greenhouse gas emissions of projects. Regardless of one’s position, ignoring climate effects may turn out to be a bridge too far, for what would otherwise be another lauded deregulatory action from the current administration.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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