Proposed NEPA Rule Changes

What They Do and Ways to Respond

Background

In passing the National Environmental Policy Act (NEPA) over 50 years ago, Congress made it the “continuing responsibility of the Federal government to . . . fulfill the responsibilities of each generation as trustee of the environment for succeeding generations.”  The Act provided 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.  NEPA created the Council on Environmental Quality (CEQ) requiring it to ensure that federal agencies acted to fulfill NEPA’s mandate.  CEQ’s NEPA regulations provide the backbone of NEPA compliance.  Each federal agency’s own NEPA regulations and guidance supplement CEQ’s. 

Key Points
 

1. Limits the actions covered by NEPA.  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.” 

RESPONSE:  A broad definition of major federal action is necessary to fulfill NEPA’s mandate.  Agencies can and do tailor the amount of review to the size of the project.  Limiting what is covered by NEPA in the first place leaves the public without a say in many decisions that shape their communities.  Pipelines like the Dakota Access, for example, might no longer be covered by NEPA.  The U.S. Army Corps argues that it is only responsible for the few miles where the pipeline crosses the lake formed by the dam it created.  Hog farms receiving federal loan guarantees could also be excluded.  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. Eliminates requirement to analyze cumulative effects.  NEPA requires federal agencies to analyze a proposed action across time.  An agency cannot look at a proposed action in isolation, but must consider it within the context of past, present and reasonably foreseeable future actions.  Trump’s proposal eliminates “cumulative” and “indirect” from the definition of “effects.”

RESPONSE:  Agencies cannot satisfy NEPA’s mandate to act as trustee for future generations without looking at cumulative impacts.  As CEQ itself has said, “Evidence is increasing that the most devastating environmental effects may result not from the direct effects of a particular action, but from the combination of individually minor effects of multiple actions over time.”  CEQ, Considering Cumulative Effects under the National Environmental Policy Act (January 1997).

3. Limits geographic scope of review.  NEPA requires an integrated, holistic approach to decision-making.  Under CEQ’s existing regulations significance “must be analyzed in several contexts such as society as a whole . . . , the affected region, the affected interest, and the locality.”  Trump’s proposal changes this to provide that agencies “may consider, as appropriate” the affected area as “national, regional or local.”

RESPONSE:  Agencies fail to satisfy NEPA’s purpose and intent if they look at a proposed action in isolation.  NEPA speaks of the Nation’s commitment “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 added new responsibilities to those under the laws that govern a particular agency.  NEPA requires integration across agencies, across time and across space.  NEPA embedded in nation’s law the recognition of the interrelatedness of systems – air, water, land, wildlife and humans.

4. Curtails public input through threat of requirement to post bond.  No one wants frivolous claims to delay a project needlessly.  But requiring posting of a bond to cover potential damages from delay in order to have legitimate concerns heard threatens to silence the very public engagement NEPA promotes.  Yet, this is exactly what Trump’s proposal does.

RESPONSE:  The proposed changes suggest that a bond might be appropriate when an agency grants a stay of an action while it is considering an appeal of the proposed action.  Little reason exists for a bond during an administrative appeal for the project proponent lacks a reasonable expectation of being able to move forward until an agency action is finalized.  Generally, an agency action is not considered final until any administrative appeal is complete.

5. Limits obligation to obtain relevant information.  For years, CEQ has required agencies to obtain the information that they need to make a decision.  If the means to obtain such information are unknown or the costs to obtain the information are exorbitant, the agency must identify the information that is incomplete or missing and explain why it is relevant.  Trump’s proposal changes “not exorbitant” to “not unreasonable.”

RESPONSE:  NEPA’s purpose is to ensure informed decision-making yet Trump’s proposal explicitly excuses them from undertaking new scientific and technical research that might be needed. 

6. Removes conflict-of-interest requirements for contractors preparing environmental analysis.  Trump’s proposal allows applicants to prepare environmental analysis themselves.  It eliminates existing conflict-of-interest requirements.

RESPONSE:  This is like having the fox guard the hen house.  Without protections against conflicts-of-interest, environmental analysis is likely to be biased by assumptions supporting the proposed project.  Moreover, nothing requires the agency to ensure that the environmental analysis meets NEPA’s requirements.

7. Allows actions to be taken before the completion of the NEPA process.  NEPA prohibits the “irreversible and irretrievable commitment of resources” before completion of the required environmental review and public participation.  The purpose of NEPA is to ensure that agencies “look before they leap.”  Yet, Trump’s proposal authorizes “such 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. 

RESPONSE:  Courts have consistently refused to allow projects to proceed when violations of NEPA have occurred.  In fact, courts across the country have issued preliminary injunctions to halt agency action while they evaluate claims of agency NEPA violations.

8. Eliminates the requirement for programmatic environmental analysis for federal or federally assisted research or development of demonstration programs for new technologies.  Courts have found that NEPA applies to technology development programs.  When Congress enacted NEPA, it was well aware that new technologies were a major cause of environmental destruction.  Yet, Trump’s proposal removes the word “shall” from agency obligations to complete programmatic environmental impact statements as it develops or assists in the development of new technologies.

RESPONSE:  NEPA identifies “new and expanding technological advances” as one of the profound influences that man has had on the interrelations of all components of the natural environment.  CEQ offers no justification in its proposal for curtailing NEPA’s application to agency involvement in new technology development.

9. Invites agencies to substitute any other analysis or process for NEPA.  NEPA does not leave it to federal agencies to decide for themselves what kind of environmental review to complete.  Just because an agency may have environmental responsibilities does not free it from the specific public participation and adequacy of review requirements imposed by NEPA.  Yet, Trump’s proposal would do just that.

RESPONSE:  CEQ offers no justification for allowing this change which runs contrary to the letter and intent of NEPA.  With the exception of the Environmental Protection Agency, Courts have rejected attempts by other agencies such as the Forest Service, U.S. Fish and Wildlife Service and the National Marine Fisheries Service to avoid the specific requirements of NEPA. 

10. Takes the heart out of NEPA by curtailing consideration of alternatives.  CEQ has directed agencies to rigorously explore and objectively evaluate all reasonable alternatives for the past 50 years.  Trump’s proposal eliminates the direction “to rigorously explore and objectively evaluate” and also deletes “all” before the phrase “reasonable alternatives.”

RESPONSE:  Without a robust analysis of alternatives, the NEPA process becomes a process documenting effects of a “done deal” rather than contributing to decision making. 

Resources
 

CEQ Guidance Documents

CEQ, A Citizens Guide to NEPA

About the Authors

Sharon Buccino

Senior Director, Land Division, Nature Program

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