Trump Administration Proposes Streamlining Agency Review of Environmental Impacts of Projects
The White House Council on Environmental Quality (CEQ) has proposed overhauling regulations governing how federal agencies review the environmental impacts of projects under the National Environmental Policy Act (NEPA). Such review sometimes has entailed years spent preparing documents hundreds or thousands of pages long, followed by years of litigation over those documents. The proposal aims to:
• simplify and shorten the environmental review process,
• limit the scope of environmental impacts and project alternatives to be considered in such review, and
• reduce the risks that agency decisions will be overturned by litigation.
The CEQ has not substantially amended its rules implementing NEPA since first adopting them in 1978. Naturally much has changed and much has been learned since then, and the need to update the rules has been widely recognized. Many of the CEQ’s proposed reforms may thus be widely welcomed. Some, though, have already engendered controversy. Concerns have been raised, for instance, that while the proposal does not explicitly address climate change, some of its proposed reforms may limit agencies’ ability to consider climate change when reviewing projects’ environmental effects. Also, organizations that regularly sue agencies to oppose or delay various projects naturally object to revisions that they think may limit or complicate their ability to continue doing so. The CEQ invites comments on its proposal by March 10, 2020.
Background
NEPA, signed by President Nixon in 1970, is the nation’s most extensive environmental law. Other laws typically focus on specific media (such as air, water, or land), specific activities (such as surface mining or releases of hazardous substances), or specific places, flora, or fauna (such as wilderness areas or endangered species). NEPA regulates the actions of all federal agencies in all of these areas. It requires federal agencies to ascertain, disclose, and consider the environmental implications of actions they propose to undertake, fund, or permit. While NEPA directly governs only federal agencies, it effectively regulates many actions of private persons as well as state and local governments, since their activities often entail federal funding or approval.
Generally, NEPA calls on federal agencies to discuss the environmental effects of proposed projects and alternatives to such projects either in a relatively brief Environmental Assessment (EA) or, if the project may “significantly” affect the environment, in a much longer Environmental Impact Statement (EIS). EAs, intended to be 10 to 15 pages according to CEQ guidance, have come to typically range from a few dozen to a few hundred pages; they commonly are prepared in less than a year. EISs, initially contemplated to be completed in a year or so, commonly require two to five or even more years to prepare and amount to several hundreds or thousands of pages.
Over the last four decades, the CEQ has issued guidance and reports and courts have rendered hundreds of decisions elaborating on various aspects of NEPA and implementing regulations, much of which has lent to increasing complexity of NEPA environmental review. Presidents Obama and Trump have also issued memoranda and executive orders aiming to improve and modernize the NEPA process.
In June 2018, the CEQ published an advance notice of proposed rulemaking requesting comments on various issues regarding how its NEPA regulations should be revised. It received over 12,500 comments.
Proposed Rules
On January 10, 2020, the CEQ issued proposed rules to, as it put it, “revise and modernize its NEPA regulations to facilitate more efficient, effective, and timely NEPA reviews by Federal agencies.” The proposed rules would restate and revise the current regulations in hundreds of ways, big and small, to achieve these and other ends, some forthrightly stated and others not so much.
Revisions that would simplify and shorten the environmental review process under NEPA include:
• Spelling out circumstances where NEPA simply does not apply, such as a project that is not a “major Federal action” within NEPA’s purview, including non-federal projects with insufficient federal control to determine the outcome of the project or non-discretionary agency decisions made in accordance with another law.
• Facilitating agencies’ establishment of “categorical exclusions” for actions they have found normally would not have significant effects.
• Enhancing the “scoping” process enabling agencies at the outset to engage the public and other agencies to identify and perhaps limit or circumscribe issues to be analyzed.
• Consolidating multiple agency reviews into a single NEPA process and approval led by a lead agency in keeping with the One Federal Decision policy established by executive order in 2017.
• Establishing presumptive time limits for preparing EAs (one year) and EISs (two years) and presumptive page limits for those documents (75 and 300 pages respectively), which can be extended only by a “senior agency official.”
• Allowing agencies to rely on applicants or contractors to provide information and prepare environmental documents provided the agencies supervise them, independently evaluate their work, and ultimately take responsibility for the scope and contents of the environmental documents.
•Allowing use of modern electronic technologies (like email) to communicate with applicants, other agencies, and the public and to circulate environmental documents.
Other revisions are more directly designed to limit the scope of environmental impacts and project alternatives discussed in EISs, including:
• Collapsing the current requirements to review the “direct, indirect, and cumulative” environmental effects of a project into a single requirement to review the “effects” of a project, defined as those “that are reasonably foreseeable and have a reasonably close relationship to the proposed action or the alternatives.” Such effects do not include those “that the agency has no ability to prevent due to its limited statutory authority or would occur regardless of the proposed action.” “Analysis of cumulative effects is not required.” Moreover, “[e]ffects should not be considered significant if they are remote in time, geographically remote, or the product of a lengthy causal chain.” It is these proposals that prompt most concern about limiting consideration of climate change in environmental reviews of projects, such as pipelines.
• Limiting the number and scope of “reasonable alternatives” that must be evaluated. “Reasonable alternatives” would be defined as those “that are technically and economically feasible, meet the purpose and need of the proposed action, and, where applicable, meet the goals of the applicant.” Alternatives outside an agency’s jurisdiction would not be technically feasible, and thus need not be included in the environmental review. The CEQ emphasizes that NEPA does not require review of “every available alternative where the consideration of a spectrum of alternatives allows for the selection of any alternative within that spectrum.”
Many of the foregoing revisions would also serve to reduce the scope of any judicial review of agencies’ actions simply by limiting the scope and range of issues considered and determined by agencies during their environmental review. Other revisions more directly designed to reduce the risks posed by litigants who may challenge agencies’ decisions include:
• Enhancing agencies’ discretion in determining whether projects “significantly” affect the environment. The proposal would eliminate the current definition of “significantly,” which speaks of both the “context” and “intensity” of effects and lists ten factors to be considered. The proposed rules would not specifically define “significance” or the like and, instead, would provide: “In considering whether the effects of the proposed action are significant, agencies shall analyze the potentially affected environment and degree of the effects of the action.” Such general language affords litigants and courts little basis for second-guessing agencies’ discretionary determinations.
• Prescribing requirements and standards for comments on EISs, including that they “shall be as specific as possible [and] should explain why the issue raised is significant to the consideration of potential environmental impacts and alternatives…”
• Reinforcing rules regarding exhaustion of administrative remedies by providing that comments must be provided within prescribed time periods, and “[c]omments or objections not submitted shall be deemed unexhausted and forfeited.”
• Requiring agencies to include a summary of alternatives, information, and analyses in EISs and to certify that they have considered all of that, including information submitted by public commenters, in developing the EISs. The proposed rules provide that EISs thus certified “are entitled to a conclusive presumption that the agency has considered the information included in the submitted alternatives, information, and analyses section” of the EISs.
• Stating the CEQ’s intention that judicial review not occur before an agency has issued a record of decision or taken final agency action, and that any allegation of noncompliance with NEPA or the regulations should be resolved as expeditiously as possible.
• Establishing that the “regulations create no presumption that violation of NEPA is a basis for injunctive relief or for a finding of irreparable harm.”
• Providing that “[h]arm from the failure to comply with NEPA can be remedied by compliance with NEPA’s procedural requirements as interpreted [in the regulations]” and further that “minor, non-substantive errors that have no effect on agency decision making shall be considered harmless and shall not invalidate an agency action.”
The CEQ plans to hold public hearings in Denver, Colorado, on February 11 and in Washington, DC, on February 25. It calls for comments by March 10, 2020.
Conclusion
The proposed rules, if adopted and implemented, would substantially streamline environmental review under NEPA. While many of the proposed reforms would serve that end, the one that may have the most practical effect in that regard is allowing non-federal project applicants to prepare EAs and EISs. If applicants, contractors, and agencies can efficiently coordinate to play their respective roles, that reform may serve to expedite the process more than any of the others.
The greatest change in the scope of EAs and EISs would arise from the reforms eliminating review of cumulative effects and focusing review on the more proximate effects of projects.
With the close of the public comment period on March 10, the CEQ will have an eye on the clock as it works to complete its review and issue final regulations. Its goal will be to accomplish that before early September 2020. Any rules issued later than that may be vulnerable to nullification by a new Congress, if that is the result of the November elections, under the Congressional Review Act, which affords Congress 60 working days to review and perhaps disapprove newly adopted agency rules.
Apart from that, advocacy groups are lining up to challenge any new rules in court. The inevitable suits will raise many issues centering around whether the major revisions of the CEQ’s regulations reasonably interpret NEPA or somehow conflict with the statute’s requirements.
David Ivester
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630
