Adieu Review: NEPA Rollback Undercuts Sensible Environmental Protections

On July 16, 2020, the Council on Environmental Quality (CEQ) published its final rule rewriting the requirements for how federal agencies comply with the National Environmental Policy Act, known as “NEPA.” I identified our concerns about the draft rule in a blog entry back in January, and my colleague Ann Mesnikoff testified in front of CEQ on the rule in February.

The final rule retains almost all of the problematic language in the draft. Like the draft, the final rule undermines virtually every aspect of the environmental review process required by NEPA. It limits what projects and activities NEPA applies to. It restricts what types of impacts and alternatives an agency must consider. It even creates restrictions on public comments and legal challenges.

What will the impacts of this rule be?

MORE, NOT LESS, LITIGATION AND DELAY

One of the justifications given by Trump for the rule revisions is that it will allow more projects to be built faster. What this doesn’t take into account, however, is the litigation and uncertainty that will be generated by completely rewriting the CEQ rule, which is supposed to guide all federal agencies.

First, there will likely be direct legal challenges to the new rule. Over 90% of Trump’s deregulation efforts have been challenged in court, and many have been overturned, compared to a 31% average among previous administrations. (For example, the Bureau of Land Management’s most recent attempt to rollback common sense requirements related to methane emissions from oil and gas development was overturned last week in a highly-critical opinion from the District Court for the Northern District of California.)

Further, the rule overturns decades of court opinions and even previous guidance issued by the CEQ itself. The settled interpretations of what NEPA requires will be thrown into question—agencies will be less certain about what is required of them, and the uncertainty may lead to even more litigation.

LESS ROBUST AND LESS MEANINGFUL ENVIRONMENTAL REVIEW

The rule attacks virtually every step of the NEPA process, and this includes the consideration of alternatives and analysis of how proposed projects will affect the environment.

The analysis of alternatives—other projects or proposals that could meet the underlying need—has long been considered the “heart” of the environmental analysis. For example, instead of building a new road, could public transit and upgrading existing roads solve the problem? The old rule emphasized the importance of really looking at alternatives, and said that agencies shall “[r]igorously explore and objectively evaluate all reasonable alternatives” to a proposed project. Under the new rule, agencies just have to “evaluate reasonable alternatives.” This lets agencies off the hook to push through projects without truly considering other solutions.

The rule also tries to limit the extent to which agencies can consider “down the line” impacts and ways in which a project will impact the environment when combined with other projects and activities (referred to as “indirect” and “cumulative” impacts). For example, building a new highway creates “induced demand”—that is, people drive more (this is the old “if you build it, they will come” idea). Not only does this actually perpetuate the traffic congestion problem, but more driving also means more greenhouse gas emissions. Combined with other greenhouse gas emissions and the greenhouse gases already in the atmosphere, this drives climate change. The government should consider how building a new highway will contribute to climate change. But the new rule encourages agencies to only look at very direct impacts, and agencies will point to the rule as saying that they no longer need to consider indirect and cumulative impacts.

LESS CONSIDERATION OF PUBLIC VOICES

NEPA is supposed to give a voice to the public. This is especially critical in communities of color and low-income communities, which suffer a disproportionate amount of pollution and other environmental damage.

Like the draft rule, the final rule rolls back requirements to really engage with comments, and instead lets agencies “certify” that they considered comments from other government agencies, Native American tribes, and the public. The rule also tries to discourage public comment by adding new language requiring public commenters to be more specific, add greater explanation of their opinions and why they are relevant, and even goes so far as to say that commenters should cite to specific pages from environmental documents, propose how documents should be rewritten, and “include or describe the data sources and methodologies supporting the proposed changes.” While many organizations that comment on environmental documents provide this level of detail and support, this is likely to intimidate and discourage many individual members of the public from commenting. I am also concerned that more “flexibility” for how agencies interact with the public may in fact lead to agencies controlling the conversation and stifling public input.

On the 50th anniversary of NEPA, we should be celebrating the abundant benefits of this bedrock environmental law. Instead, the Trump Administration is trying to take us back in time, to ram through unreasonable projects and undermine the voice of the American people. ELPC will continue to fight back, to protect the Midwest and beyond.

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