NEPA created CEQ. Now CEQ proposes to destroy NEPA.
Fifty years ago, President Nixon signed the National Environmental Policy Act (NEPA). Enacted in response to mounting crises across the nation, NEPA promised to correct the blind eye that American policymakers had long turned to environmental impacts of federal agency actions. The Act imposes on the national government an obligation “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 mandated a process to ensure that: (1) government decisions were informed by analysis of environmental impacts and that (2) the public had access to this information and the right to provide it. Congress designed the process to reach substantive results—to ensure that federal actions promoted people over profits.
Not trusting the agencies to fulfill the statute’s requirements, Congress created the Council on Environmental Quality (CEQ) to fulfill NEPA’s mandate.
CEQ has lost sight of its purpose. Earlier this year, the Council proposed changes to its NEPA rules. Rather than promote NEPA’s mandate, these changes undercut it. Comments filed by NRDC explain how. Here are a few of the points we made:
1. The proposed rule unlawfully narrows the scope of actions to which NEPA applies.
NEPA applies to “major federal actions.” Courts have interpreted this phase broadly. Trump’s proposal would change the definition to exclude those actions where “minimal Federal funding or minimal Federal involvement” limits the agency’s control over “the outcome on the project.” Talk about a recipe for litigation. What counts as "minimal"? What counts as “influencing the outcome"? President Trump says he wants more certainty, but this proposal creates a lot less.
2. The proposed rule unlawfully excludes consideration of cumulative and indirect effects.
Agencies cannot satisfy NEPA’s mandate to act as trustee for future generations without looking at cumulative impacts and indirect effects. Yet, CEQ proposes to eliminate both from the definition of “effects.”
3. The proposed rule fails to meet NEPA’s mandate to evaluate the impacts of climate change.
Climate change is the perfect example of a significant long-term environmental effect that must be analyzed and disclosed by an agency. Courts have now consistently required agencies to take in account climate change impacts of and on proposed actions. Rather than help agencies do this analysis, CEQ proposes to excuse it.
4. The proposed rule seeks unlawfully to restrict NEPA’s extraterritorial application.
The “human environment” is not the “domestic” or “U.S.” human environment, but plainly encompasses the whole human environment. Excluding major federal actions from NEPA compliance where a component takes place overseas contradicts the plain text of the statute. NEPA requires agencies to “recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind’s world environment.”
5. The proposed rule would permit unlawful commitment of resources in advance of NEPA compliance.
As reiterated over and over by the courts, NEPA requires agencies to “look before they leap.” Agencies must complete environmental analysis before acting so that such information can inform the decisions made. Yet, CEQ’s proposal authorizes the precise activity that NEPA forbids. It authorizes “activities, including, but not limited to ‘acquisition of interests in land’” while the NEPA process is still underway. Moreover, the proposal explicitly delays NEPA compliance until after treaties, international conventions and agreements have already been ratified.
Congress charged CEQ with responsibility to guide federal agencies in complying with NEPA’s mandate. Contrary to helping agencies comply with NEPA, CEQ now proposes to thwart them. CEQ not fails to advance NEPA’s goals, but attempts to reverse judicial efforts over the years to give meaning to NEPA’s promise of informed and inclusive decision making.
While it can change its rules, CEQ must do so in a way that is consistent with NEPA’s text. Here, its changes are not. While it can change its past practice, CEQ must provide an explanation and evidence to support its change. Here, it has not.