[co-author: Alexandra Palmer, Law Clerk]

On August 15, 2017, President Trump signed an Executive Order entitled “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure." Since its creation, two supplemental Orders have been signed by the Secretary and Deputy Secretary of the Interior, in an effort to streamline and improve implementation of the NEPA process.

Members of the environmental watch-dog community have expressed concerns that the NEPA process is being diluted, and will no longer ensure that the environment is protected. This sort of position misunderstands the purpose of NEPA or the likely effect of these Orders and guidance.

The purpose of this briefing article is to provide a brief summary of the National Environmental Policy Act (“NEPA” or “the Act”), how the Act has been interpreted and expanded upon, and an analysis of the Deputy Secretary’s Order, its impact, and why it has become necessary.

I. The National Environmental Policy Act – A Brief Overview

The National Environmental Policy Act (“NEPA” or “the Act”) was intended for the following purpose¹: 

To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.

NEPA established the basic environmental protection policies for the United States. The Act outlines and defines the processes for evaluating the environmental consequences of major federal actions. The most visible requirements of the act are the Environmental Assessments (“EA”) and the Environmental Impact Statements (“EIS”). NEPA, however, is brief. It does not include a decision-making process nor does it state how the statute should be administered—because of these vagaries, the Courts and supplemental regulations have played a role in its implementation.

The purpose of NEPA was to promote rational decision making where the environment was concerned. The Act, however, was not intended to be used as a backdoor policing agent against bona fide projects. The arduous permitting process has, according to the Trump administration, resulted in a weakened American economy, depressed our competitiveness in the world market, led to lost jobs and decreased wages, and increased the overall costs of goods and services to American families.²  For those reasons, the President issued Executive Order: “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects.”

II. The Executive Order

The purpose of President Trump’s Executive Order was to “ensure that the Federal environmental review and permitting process for infrastructure projects is coordinated, predictable, and transparent.”³ Ineffective management of environmental reviews and delayed permit decisions and authorizations were cited as reasons for the Order.⁴

Generally, the Executive Order includes the following notable changes to the EA and EIS requirements under NEPA:

• Two year target goal of completing an EIS
• Single Record of Decision, issued jointly by all agencies who are involved in the project
• Permit and authorization decisions should generally be made 90 days after completion of the NEPA process
• Establishes reporting requirements and requires federal agencies to set performance goals for completing environmental reviews for project proposals

III. The Role of the Secretary of the Interior

On August 31, 2017, the Secretary of the Interior signed into effect Order No. 3355, “Streamlining National Environmental Policy Act Reviews and Implementation of Executive Order 13807.” The Secretary’s Order was issued to improve the Department of the Interior’s environmental review process under NEPA. The relevant portions of that Order are as follows:

• In order to streamline the permitting process, EISs should not be more than 150 pages generally, or 300 pages for unusually complex projects, excluding appendices.
• EISs should have a target completion date within 1 year of the issuance of a Notice of Intent (“NOI”) to prepare the EIS.
  • Timelines exceeding that target range by more than 3 months must be approved by the Assistant Secretary with responsibility for the matter.
• Within 30 days of a project proposal, Bureau heads must provide to the Deputy Secretary a target page limit and time deadline proposal.
  • EAs should be consistent with Council on Environmental Quality (“CEQ”) general practice of 10-15 pages.
  • Any special circumstances should be listed.
• The Order also required that each Assistant Secretary, within 30 days of its issuance, provide recommendations for further streamlining actions, including:
  • Development of categorical exclusions from NEPA
  • Best Practices for Infrastructure Projects
  • Regulatory and Policy revisions
  • More efficient surnaming process

On August 6, 2018, coming up on the heels of President Trump’s Executive Order’s one-year anniversary, the Deputy Secretary of the Interior, issued a memorandum with additional direction for implementing Secretary’s Order 3355 with respect Environmental Assessments (“EA”). Specifically, the Secretary’s memo helps to clarify section 4b of the Order which sought the recommendations of the Department’s Bureau and Office heads for target page and time goals in the preparation of EAs where a Bureau is the lead agency.

The Secretary’s memo addresses several key components of EA preparation. Summarily, below are the pertinent determinations:

• EA Page and Time Guidelines:
  • The CEQ recommends that EAs be approximately 10-15 pages in length and that they be completed in 3 months or less.
  • The Department of Interior’s normal practice yields EAs that are 30-40 pages in length.
  • In some complex instances where an EA cannot be kept to the aforementioned page limits, Bureaus should strive to complete EAs in less than 75 pages, excluding appendices, and still maintain a completed timeframe of 180 calendar days.
  • In the event that a proposed action presents challenges that make it very unlikely for an EA to be completed in less than 75 pages or 180 days, the EA Project Teams should consult with the Office of the Solicitor, Bureau Director, and first-line Senior Executive Service member to determine the best course of action.
• EA Tracking and Management:
  • In order to ensure that the goals of E.O. 13807 are fulfilled, agencies shall upload EA project information and schedules to the NEPA and Permit Tracking Database, for any project that is expected to exceed the 180 day timeline or the 75 page maximum page count.
  • If the EA can and is expected to be completed according to the page and time guidelines, then agencies are not required to upload project information and schedules.
• EA Team and Solicitor Assignments:
  • Where an EA is expected to be controversial, complex, or is perceived to possess a greater-than-average risk of litigation, the Bureau lead and EA Project Team must submit the EA to the Office of the Solicitor, which will then determine whether an attorney needs to be assigned to the EA Project Team.
  • If an attorney is assigned, that attorney is then responsible for ensuring that the EA is legally sufficient prior to the conclusion of the EA analysis.
• Meeting EA Page and Timeline Goals:
  • Agencies are expected to draw upon their expertise and experience to address individual issues related to the page and timeline goals.
  • An EA can be prepared in any format that is useful to facilitating planning, decision making, and informing the public.
• Public Involvement should be incorporated into the project’s 180-calendar-day timeline, unless the EA is tied to a formal Agency rulemaking procedure that requires a public comment period, in which case a deviation may be proper.
• Generally, the same page and time limits should apply where a contractor is used.
• Bureau NEPA Handbooks should be updated to reflect and incorporate the requirements of the Memo.

The Secretary’s Memo does not change NEPA itself or other environmental review and permitting requirements, it simply designates time and page limitations to help streamline the permitting process. It does not relieve agencies from their duty to conduct environmental reviews according to NEPA and otherwise comply with statutory requirements.

The issuance of these Orders, not surprisingly, has been met with some contention.

IV. Reconciling Brevity with Legal Sufficiency

Although efforts to make NEPA documents more readable and concise are laudable, they are often met with resistance—specifically, on grounds of legal sufficiency.

NEPA does not require agencies to elevate environmental concerns over other appropriate considerations but requires only that the agency take a “hard look" at the environmental consequences before taking a major action. Or. Natural Res. Council v. Bureau of Land Mgmt., 470 F.3d 818, 820 (9th Cir.2006) (quoting Klamath–Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 993 (9th Cir.2004)). The following points illustrate how the “hard look” requirement of NEPA has been hammered out by the courts:

• [G]eneral statements about possible effects and some risk do not constitute a hard look absent a justification regarding why more definitive information could not be provided. Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1213 (9th Cir. 1998) (internal quotation marks omitted).
• A proper consideration of the cumulative impacts of a project requires "some quantified or detailed information; . . . general statements about possible effects and some risk do not constitute a hard look absent a justification regarding why more definitive information could not be provided." Ocean Advocates v. United States Army Corps of Eng’rs, 361 F.3d 1108, 1128 (9th Cir. 2004) (quoting Neighbors of Cuddy Mountain v. United States Forest Serv., 137 F.3d 1372, 1379-80 (9th Cir. 1998)).
• The analysis "must be more than perfunctory; it must provide a useful analysis of the cumulative impacts of past, present, and future projects." Ocean Advocates v. United States Army Corps of Eng’rs, 361 F.3d 1108, 1128 (9th Cir. 2004) (quoting Neighbors of Cuddy Mountain v. United States Forest Serv., 137 F.3d 1372, 1379-80 (9th Cir. 1998)).
• The ‘hard look’ ‘must be taken objectively and in good faith, not as an exercise in form over substance, and not as a subterfuge designed to rationalize a decision already made.’ Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000).
• The hallmarks of a ‘hard look’ are thorough investigation into environmental impacts and forthright acknowledgment of potential environmental harms. Nat'l Audubon Soc'y v. Dep't of Navy, 422 F.3d 174, 187 (4th Cir. 2005).

The Secretary’s suggestions do not deviate from other statutory requirements. For instance, the regulations published by the CEQ in 1978 established a target size for EISs as "normally not to exceed 150 pages in length and for proposals of unusual scope or complexity 300 pages." 40 CFR 1502.7. The CEQ, in its guidance memorandum to agencies, suggested that EAs should not be more than 10-15 pages in length.⁵  In section 4(a) of the Secretary’s Order, techniques such as tiering or incorporation by reference are suggested in order to stay within the page limits—these techniques are listed by statute as well:

To the extent possible, bureaus should use techniques such as incorporation of referenced documents into NEPA analysis (46.135) and tiering (46.140) in an effort to remain within the normal page limits stated in 40 CFR 1502.7.⁶

The Secretary’s establishment of time limits is not a novel idea. Section § 46.240 reads as follows:

(a) For each proposed action, on a case-by-case basis, bureaus shall:

(1) Set time limits from the start to the finish of the NEPA analysis and documentation, consistent with the requirements of 40 CFR 1501.8 and other legal obligations, including statutory and regulatory timeframes;
(2) Consult with cooperating agencies in setting time limits; and
(3) Encourage cooperating agencies to meet established time frames.

(b) Time limits should reflect the availability of Department and bureau personnel and funds. Efficiency of the NEPA process is dependent on the management capabilities of the lead bureau, which must assemble an interdisciplinary team and/or qualified staff appropriate to the type of project to be analyzed to ensure timely completion of NEPA documents.

The difference here is that the Secretary has made the time limits a little less illusory. The timeframes listed are designed to maximize agency efficiency while remaining faithful to the legal requirements and duties that the agency must abide by. The guidance provided in the Secretary’s Order and the instructional memo was based on and influenced by each Bureaus’ feedback for the thorough and timely consideration of environmental impacts. Each Bureau is uniquely situated to comment on the amount of time that an EIS or EA might take, and the guidance accurately reflects those considerations. Furthermore, the timeframes and page limits reflect the original intent of the Act, discussed below.

V. The Secretary’s Memo is Consistent with the Original Intent of Congress

The requirements of the Act, with specific regard to the preparation of EISs and EAs, have been shaped by forces that were not foreseen by the drafters. The Orders and guidance described herein are meant to revise and simplify the process consistent the original intent of NEPA.

The Conference Report on the National Environmental Policy Act of 1969 addressed the need to establish timeframes. In specific reference to section 102(C) which establishes the baseline standard for environmental impact studies, the conferees stated:

The conferees do not intend that the requirements for comment by other agencies should unreasonable delay the processing of Federal proposals…The conferees believe that in most cases the requirement for State and local review may be satisfied by notice of proposed action in the Federal Register and by providing supplementary information upon request of the State and local agencies. (To prevent undue delay in the processing of Federal proposals, the conferees recommend that the President establish a time limitation for the receipt of comments from Federal, State, and local agencies similar to the 90-day review period presently established for comment upon certain Federal proposals.)

Even in NEPA’s infancy, the need for a clearly established timeframe was discussed. The lack of defined time and page limits has caused conflict between compliance and efficient management. This last year has seen a push towards reconciling the problems associated with NEPA. A driving force behind the Administration’s actions is the need to establish a coordinated, predictable, and transparent permitting process.

VI. Concluding Thoughts

The Executive and Secretary Orders are likely to be challenged. It is important to note that the Orders are striving to implement time and page guidelines that have been in place for some time now. This will provide consistency across federal agencies and provide clarity for the industry, two things that are desperately needed.

The Orders and guidance being pushed out by the Trump Administration are consistent with the original intent of NEPA, and the guidance and regulations that have been in place with respect to the same for nearly 50 years. As outlined above, the “hard look” requirement of NEPA is still in effect, and has not been weakened. NEPA has always been about disclosing impacts, not reaching a substantive result. In order to comply with the Orders and guidance, one can expect that agencies will rely heavily on appendices. Appendices do not count towards the page limits, and as such can be as long is as is necessary to satisfy the “hard look requirement.” Practically speaking, one can expect that the text of an EIS or EA will focus on the “environmental consequences” of a “proposed action” and alternatives thereto. Summarily, this means the text of an EIS or EA will disclose the direct, indirect, and cumulative impacts of the “No Action,” “proposed action,” and alternatives as to each resource, i.e. each aspect of the “affected environment,” whereas the appendices will disclose and discuss the methodology used to identify each aspect of the “affected environment,” the anticipates impact levels and significance, and mitigation thereof. In so doing, one can reasonably expect that EIS and EAs will continue to have substantively identical information as they have for the past almost 50 years, and that the Orders and guidance will merely lead to a different type of organization.

Ultimately, there will be a different appearance with no distinction as to content. The most valuable aspect of this guidance is with respect to the stricter guidelines as to timing. Often a NEPA process will languish, with EAs taking 18 months to three years and EISs taking anywhere from two to seven years.  The timing for completing a NEPA process has long been the barrier to project’s utilizing federal lands and resources, not the content of the EISs or EAs themselves. Consequently, these Orders and guidance provide an important step for pressuring agencies to more timely comply with NEPA, but will not ultimately diminish or dilute the environmental analyses contained in EISs or EAs.

References:

¹91 P.L. 190, 83 Stat. 852.
²Exec. Order No. 13807, “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure,” 82 Fed. Reg. 40463 (Aug. 24, 2017).
³Exec. Order No. 13807, “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure,” 82 Fed. Reg. 40463 (Aug. 24, 2017).
⁴Id.
⁵Council on Environmental Quality: Memorandum to Agencies – Forty Most Asked Question’s Concerning CEQ’s National Environmental Policy Act Regulations, 46 Fed. Reg. 18026 (March 23, 1981).
⁶43 CFR 46.405