NEPA’s Turn on the Trump Chopping Block

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Wendel Rosen LLPAs it has with other environmental laws, the Trump administration has taken aim and fired at the National Environmental Policy Act (“NEPA”).  In record time, changes to the regulations proposed just six months ago have been adopted and are slated to take effect September 14, 2020.  Depending on your perspective, this may or may not be welcome news, but it is significant news.

In a small nutshell, NEPA is the federal law that requires the environmental impacts of proposed projects on federal land or subject to permits by federal agencies, be taken into account before approval.  The law’s goal was to ensure that government decisions take into account the impacts of those decisions and enable the public to weigh in.  Californians may be more familiar with the similar process for state permits and approvals under the California Environmental Quality Act (CEQA).

Under NEPA, a project requiring a permit from the US Army Corps of Engineers to fill a federal wetland, for example, would trigger environmental review under NEPA.  First, an Environmental Assessment (“EA”) is undertaken to assess environmental impacts.  If those impacts are “significant,” an Environmental Impact Statement (“EIS”) is required to examine those impacts more thoroughly, and identify ways to avoid or mitigate those impacts.  The EIS process, however, can involve thousands of pages, take several years and cost many tens or hundreds of thousands of dollars.

In August 2017, President Trump issued Executive Order 13807 directing changes to NEPA regulations to, among other things, “streamline federal decision making.”  In January, 2020, fifty years after President Nixon signed NEPA into law, the Council on Environmental Quality (”CEQ”) published proposed regulations described as a “comprehensive update” to “modernize and clarify the regulations to facilitate more efficient, effective, and timely NEPA reviews by federal agencies.”   See 85 Fed.Reg. 1684.  In response, CEQ received well over a million public comments.

There is little question the 42-year old regulations could be revised to make NEPA work better, and many argue an update is long overdue.  Some of the changes may be widely applauded, but in some respects, the effect of the regulations is to make NEPA work less.

For example, the new regulations limit the scope of environmental review by excluding analysis of cumulative impacts.  They require focus on impacts that are “reasonably forseeable” and have a “reasonably close causal relationship” to the project.  Also, impacts occurring in the future or at distant geographic locations “may” be considered, but there is no requirement to take them into account.  As a result, climate impacts, which have been an issue in litigation over oil and gas leases and pipeline projects, can be ignored.

In addition, eliminating the consideration of cumulative impacts will result in disproportionate health and economic impacts on poor communities and communities of color that already experience higher levels of exposure to pollutants.  The impacts of a project can be reviewed in isolation, even if it exacerbates existing conditions.  And the high level of detail required of public comments will undoubtedly limit citizen’s ability to meaningfully participate in the environmental review process.

The regulations also place baseline time and page limits on EAs (1 year and 785 pages) and EISs (2 years and 300 pages), which will result in less information and more superficial analysis for public review.

The new regulations significantly reduce the hard look required of projects that will have lasting impacts on the environment and the communities around it.  If they withstand legal challenges, we can expect large pipeline projects, oil and gas leases, and large transportation projects with much less scrutiny of their long-term impacts and costs to the environment.  Not surprisingly, they have been described as gutting the landmark statute in a way that conflicts with the very purpose of the law, and challenging lawsuits are expected to be filed in the coming weeks.

The new regulations were published in the Federal Register July 16, 2020.  85 Fed. Reg 43304.

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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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