January 27, 2020
Rolling Back Bedrock Environmental Law Ignores Climate Science And Stifles Public Input
You may have never heard of the Council on Environmental Quality (CEQ), but this agency plays a crucial role in protecting the environment under the National Environmental Policy Act (NEPA).
NEPA is widely considered to be the nation’s basic environmental charter. Its core purpose is to require informed and thoughtful decision-making. Before a federal agency can do something big—like fund a new highway or permit a pipeline—it has to look at how its actions will affect the environment, give this information to the public and decisionmakers, and consider input from the public.
NEPA itself—the statutory language passed by Congress 50 years go —is fairly bare-bones. Most of the specifics about what is required have been developed through decisions by federal courts, and by rules developed by the CEQ. So CEQ rules have historically been very important in telling agencies what they have to do under NEPA. And because CEQ rules are supposed to guide all federal agencies, weakening the requirements could have wide-ranging impacts.
The reality is that this proposal is a far-reaching attempt to undermine the very nature of informed and thoughtful decision making.
January 2020 actually marks NEPA’s 50th birthday and to celebrate, Trump’s CEQ proposed a complete overhaul of the rules for how federal agencies carry out NEPA reviews. CEQ claims to be about encouraging efficiency while reducing bureaucratic red-tape. The reality is that this proposal is a far-reaching attempt to undermine the very nature of informed and thoughtful decision making. Most notably, it would prevent agencies from considering climate impacts of their actions, allow them to more easily ram through bad projects, discourage public participation, and attempt to prevent oversight from the courts.
What’s so bad about the proposed rules? Here are my top three concerns:
Encouraging Federal Agencies to Ignore Climate Impacts
The proposed rule would allow federal agencies to ignore the climate impacts of their actions. With climate change impacts already being felt across the Midwest (from extreme flooding to worsening toxic algal blooms in the Great Lakes) and around the globe, federal courts have stepped up and started insisting that environmental analyses under NEPA consider greenhouse gas emissions and the resulting climate impacts of federal actions. This rule attempts to reverse that, by stating that agencies should not consider “indirect” or “cumulative” impacts. In other words, the proposed rule is an attempt to stop agencies from looking at the downstream carbon and climate impacts when deciding whether to lease land for oil drilling or permit oil pipelines. To quote former U.S. EPA Administrator Gina McCarthy, “While our world is burning, Trump is adding fuel to the fire.”
Limiting the Alternatives that Agencies Can Consider
NEPA’s requirement that federal agencies consider alternatives is the “heart” of the NEPA analysis. Not every idea is a good idea. Brainstorming and considering various options is critical to good decision-making. If a state wants federal funding to build a massive new highway to reduce congestion, it should look at whether there are better, more environmentally-friendly alternatives—like upgrading public transit options in the area and improving local roads. The proposed rule, however, would limit the types of alternatives that an agency could consider.
Restricting Public Input and Oversight by Courts
One of the most important aspects of NEPA is that it gives the public a voice in the decision-making process. Imagine a highway that might increase air pollution in a community already suffering from polluted air, or a river-side community concerned with how a project might impact flooding – NEPA ensures the public can have a say. Trump’s proposed rule will limit the ways that the public can engage and influence agency decision-making, as well as how the public can challenge big projects in court. For example, agencies currently are required to consider, and then actually respond to public comments. Under the proposed rule, an agency can just “certify” that they considered the public comments. Even worse, the rule asserts that this certification would create a “conclusive presumption” that the agency did adequately consider the comments. This is an alarming attempt to prevent courts from being able to exercise their legal authority to review agency actions.
What’s next? CEQ will be taking public comment on the proposed rules until March 10, 2020, after which it will publish a final rule. We, along with 55 other Great Lakes and Midwest-based groups, have requested a 120-day extension of the public comment period, and additional in-person hearings.
If the final rule is as bad as this proposal, it will undermine the bedrock principles NEPA has been protecting for 50 years. ELPC will be submitting our comments and inviting our members to submit their own. We will be ready to challenge a final rule in court.