How To Straighten the Long and Winding Road that We Call NEPA

Foley Hoag LLP - Environmental Law
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Foley Hoag LLP - Environmental Law

So CEQ has proposed to amend the NEPA regulations in order to eliminate some of the changes made by the Trump Administration in 2020.  Important changes include:

  • explicit consideration of indirect impacts
  • renewed emphasis on consideration of cumulative impacts
  • elimination of the requirement that there be “a reasonably close causal relationship” between a proposed action and a potential impact, and
  • a greater willingness to allow regulators to look at the “purpose and need” that a project will address, rather than leaving the purpose and need to the project proponent.

I get the reason for the changes and I don’t oppose them.  However, the environmental community is kidding itself if it thinks that there’s a magic wand that will ensure that projects get the kind of environmental review they need without any risk that NEPA will be used as a sword by those who want to stop projects, often for reasons that have nothing to do with the public interest, and not solely as a shield by those seeking to protect the environment.

CEQ has made clear that last week’s proposal was just the first step in a two-part reform effort.  Bloomberg (subscription required) reports that phase 2 could address ways to make the NEPA process work more effectively.  I’ll believe it when I see it.

There are good reasons why the U.S. Chamber of Commerce has little credibility on NEPA issues, but this statement by Chad Whiteman at the Chamber could as easily have been made by wind or solar energy producers, or countless others looking to build the green infrastructure that we’re going to need for a net-zero economy that works for everyone:

By rolling back some of the most important updates to our antiquated permitting process, the new proposed NEPA rule will only serve to slow down building the infrastructure of the future. Important projects that address critical issues like improving access to public transit, adding more clean energy to the grid and expanding broadband access are languishing due to continued delays and that must change.

There are certainly places and projects where we simply need more review.  However, we often don’t need more review; we need better review.  Let’s hope that the smart folks at CEQ can figure out how to straighten out the long and winding NEPA road.

Click here to view video.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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