In another step in President Trump's ongoing efforts to relax environmental restrictions impacting economic development, on January 10, 2020, the Council on Environmental Quality published its proposed rulemaking to update its regulations for implementing procedural provisions of the National Environmental Policy Act ("NEPA") ("Proposed Rule"). The deadline for filing comments on the Proposed Rule is March 10, 2020. Public hearings will be held on February 11, 2020, in Denver Colorado, and on February 25, 2020, in Washington D.C.
NEPA requires federal agencies to consider the environmental impact of major federal actions significantly affecting the quality of the human environment before taking such actions in a “detailed statement.” The statute also requires agencies to consider alternatives to proposed actions. Under the current regulations, agencies comply with NEPA and the regulations by (i) developing Environmental Impact Statements (“EIS”) for major federal actions significantly affecting the quality of the environment, (ii) preparing an Environmental Assessment (“EA”) to determine whether an EIS is required or to document the agency’s determination that an EIS is not required or (iii) identifying an applicable categorical exclusion for actions that do not individually or cumulatively have a significant effect on the environment.
The Proposed Rule seeks to modernize and clarify regulations to facilitate more efficient, effective, and timely NEPA reviews by federal agencies. The revisions would reduce paperwork and delays, and promote better decisions consistent with the national environmental policy set forth in §1 of NEPA. That section sets forth a national policy -
"to use all practical means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans."
NEPA does not mandate particular results or substantive outcomes. Rather, NEPA requires federal agencies to consider environmental impacts of proposed actions as part of agencies' decision-making processes.
The Proposed Rule would redefine “effects” or “impacts” as the effects “that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives.” The Proposed Rule emphasizes the causal relationship that is necessary and states that a “but for” causal relationship is insufficient to require analysis under NEPA. The proposal also states that effects should not be considered significant if they are remote in time, geographically remote, or the product of a length causal chain. In addition, in a significant shift from the current rules, the Proposed Rule would expressly state that analysis of cumulative effects (as defined in the current regulations) in not required. Thus, consideration of climate change as an "impact" of a project will not be required.
The Proposed Rule would add provisions that address the threshold question of when NEPA applies to an agency action. The provisions provide five considerations to assist agencies in analyzing whether compliance with NEPA is necessary. The proposed rule also clarifies that agencies may either (i) conduct these threshold analyses on a case-by-case basis or (ii) identify specific actions not subject to NEPA in their NEPA procedures. The Rule would eliminate some NEPA requirements by revising the definition of a “major federal action” to exclude “non-federal projects with minimal federal funding or minimal federal involvement where the agency cannot control the outcome of the project.” For example, this revision might exclude a NEPA review of the entirety of a project for which a small amount of federal funding is provided to help design an infrastructure project that is otherwise funded through private or local funds.
The Proposed Rule would set presumptive time limits to prepare EAs (one year) EISs (two years), unless a senior agency official approves in writing a longer time period. The proposal would also limit the page length (not including appendices) of (i) EAs to 75 pages and (ii) EISs to 300 pages, unless a senior agency official provides written approval to lengthen the document. It would require that comments and objections to environmental analyses that are untimely submitted or not submitted shall be deemed forfeited. This provision is intended to prohibit parties from challenging analyses based on issues they did not raise during the public comment period. The proposal would also limit the opportunity for judicial review to the issuance of a signed record of decision or other final agency action. Thus, the opportunity for litigation to slow or stop a project will be more limited.
The Proposed Rule would revise provisions related to the purpose and need statement and the definition of reasonable alternatives. Specifically, it would require agencies to base the purpose and need statement for an authorization for private action on (i) the goals of the applicant and (ii) the agency’s authority. It also proposes to define “reasonable alternatives” as alternatives that are (i) technically and economically feasible; (ii) meet the purpose and need for the proposed action; and (iii) meet the goal of the applicant (where applicable).
Critics of the Proposed Rule have asserted the changes would weaken critical safeguards for air, water and wildlife. The Proposed Rule will likely be challenged in court, but if it becomes final it could eliminate a powerful tool that climate change activists have used to stop or slow President Trump’s encouragement of coal and oil development.
The Proposed Rule is, in part, a response to court rulings that regulatory decisions have failed to adequately consider environmental impacts. For example, early last year a federal judge found the Obama administration did not adequately take into account the climate change impact of leasing public land for oil and gas drilling in Wyoming, a ruling that also presented a threat to President Trump’s plans for fossil fuel development. Shortly thereafter, another federal judge dealt a blow to Mr. Trump’s plan to lift an Obama-era moratorium on coal mining on public lands when he found the administration did not adequately study the environmental effects of mining as required by law.
The Council on Environmental Quality will consider the comments filed in March and likely publish a final rule later this year which will undoubtedly be challenged in court.
