By Giulia Schaub, Blog Editor
President Donald Trump and the White House Council on Environmental Quality (CEQ) released their proposal on January 10, 2020 to modify the National Environmental Policy Act (NEPA), with the ultimate goals of bringing an end to the slow federal approval processes of new projects and allowing for faster updates to delipidated infrastructure.[1] [2] The proposal focuses heavily on procedural changes that promise a more efficient course for approval or denial of projects across multiple agencies.[3] Ultimately, these changes would limit the kinds of projects subject to NEPA review, specifically excluding those that receive little federal funding, while simultaneously allowing for more industry involvement in determining the environmental impacts of such projects.[4]
Since its enactment on January 1, 1970, NEPA has required federal agencies to evaluate certain environmental effects that will result from their proposed actions before they are carried out, in hopes of minimizing detrimental consequences.[5] Agencies must research, prepare, and publish Environmental Assessments (EA) that describe in detail the environmental, social, and economic impact of major federal actions of that agency.[6] Oftentimes, these statements will include alternatives to actions that will have a significant impact on the environment.[7] Agencies are to use these reports to decide when to issue approvals, authorizations, and permits.[8] The agency must deliver a “Finding of No Significant Impact” in order for the project to move forward.[9] Even if the project shows that there will be a significant impact, it may still commence after an Environmental Impact Statement (EIS) is published, which is similar to an EA but requires more public input.[10]
NEPA has not been modified or updated since its promulgation in 1978.[11] In recent years, its adequacy has been questioned for bureaucratic and procedural redundancy.[12] Supporters of streamlining NEPA wish to hasten environmental reviews -which can persist for years at a time and produce in hundreds of pages of reports- in order to break ground for necessary infrastructure. “Since the NEPA statute was enacted over 50 years ago, the environmental review and permitting process has become much more complex and time consuming, and can result in delays of critical infrastructure projects for communities,” said Mary Neumayr, chairwoman of CEQ, at one of two public hearings regarding the proposal.[13]
Others cite the judicial subjectivity throughout the NEPA review procedures as a major flaw that requires drastic change. Years of case law and personal purview of judges often cloud the issuance of approvals, authorizations, and permits, should a federal agency action trigger NEPA. Jim Cagney, a former district manager under the Bureau of Land Management (BLM) for Northwest Colorado, recalled feeling as if his work was futile.[14] “[I]t often seemed like I was just preparing documents for a judge who would ultimately decide the issue based on a personal perspective of NEPA adequacy,” he wrote, while zeroing in on issues with NEPA litigation.[15] “Judges aren’t bashful about requiring unaffordable NEPA adequacy standards either. Many believe the cost of implementing NEPA is Congress’s exclusive problem.”[16]
Supporters also point to an obvious motive for any drastic change to long-standing bedrock legislation: money. Assuring a shortened and relaxed processing of the appropriate studies and assessment would cut costs in virtually every facet of NEPA reviews.[17] Chiefly, investors and companies are hesitant to take on new projects that are at risk of becoming postponed or even halted altogether as a result of lengthy NEPA reviews.[18] The Trump administration has fretted over this obstacle to the economic growth it wishes to see during Trump’s presidency.[19] “The current rules are used as a tool to obstruct important projects, such as highways, bridges, public transit and even renewable energy projects,” says Tom Donohue, CEO of the U.S. Chamber of Commerce. “Reducing delays and uncertainties associated with infrastructure investment and related projects will allow businesses to plan and invest with confidence while enhancing economic productivity and supporting more and better-paying jobs throughout the country.”
This proposal has faced major backlash from environmental advocacy groups, tribal activists, and many politicians for its major loosening of the multilayered protections promised under these reviews.[20] Most of the criticism focuses on concerns regarding streamlining NEPA review to a timeframe that is too short for an analysis that would properly consider the effects a project will have on climate change.[21] Indeed, the Trump administration’s proposal removes language from NEPA that, according to the courts, indicates that the government must assess a project’s impact on global warming before the project may commence.[22]
Thus far, attorneys general for 18 states, including Pennsylvania, have stood in solidarity in asking the White House to withdraw the rule, calling its changes to NEPA “unlawful, unreasonable, and unjustified.”[23] [24] In their comment to the proposed rule, which totals at 247 pages, the attorneys general accuse the Trump administration of attempting to undermine the plain language of NEPA by granting “extraordinary discretion to federal agencies and project proponents while limiting consideration of environmental and public health impacts from federal actions.”[25] In leaving gaps in the NEPA process by eliminating crucial steps in its execution, they note that state governments would be required to step in to assure environmental safety, with little guidance to do so.[26] In addition to the potential negative environmental effects of weakening NEPA, the attorneys general stated that the CEQ provided no factual basis for the alleged shortcomings in NEPA application and litigation.[27]
A group of six U.S. Senators have also announced their opposition to the proposed rule and, in their comment, explained their position based on the effect the rule would have on Environmental Justice (EJ) communities.[28] [29] EJ communities, which include communities of color, disadvantaged communities, and indigenous communities, have been and will be adversely affected by environmental impacts.[30] Years of economic and racial inequality have historically exposed EJ communities disproportionately to pollution and climate threats.[31] Trump’s proposal that would permit certain projects to commence without a proper NEPA analysis would make these communities even more susceptible, considering their locations and the costs of land and resources.[32]
The public comment period ended on March 10, 2020, after a federal judge for the Western District of Virginia denied a request from the Southern Environmental Law Center (SELC) to extend this period.[33] The proposal has amassed nearly 600,000 comments in three months, many of which include detailed reports from environmental and conservation groups.[34] Kirk Johnson, the executive director of Friends of Allegheny Wilderness, has already begun work with environmental law experts to defend Pennsylvania’s susceptible lands.[36] “Really all that [Trump’s proposal] would be doing would be rubber stamping, in effect, industry proposals for development on federal public lands,” he states. “Any time an agency puts forward a bad proposal that’s going to harm wilderness or potential wilderness, we need to be able to rely on a NEPA law that has teeth.”[36]
[1] Kathy G. Beckett, Revisions to NEPA Proposed to Unlock American Investment, Nat’l L. Rev. (Feb. 14, 2020), https://www.natlawreview.com/article/revisions-to-nepa-proposed-to-unlock-american-investment.
[2] Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg. 1684 (proposed Jan. 10, 2020).
[3] Id.
[4] Rebecca Beitsch, 18 States Ask Trump Administration to Withdraw Major Environmental Rollback, Hill (Mar. 11, 2020, 03:17 PM EDT), https://thehill.com/policy/energy-environment/487082-18-states-ask-trump-administration-to-withdraw-major-environmental.
[5] National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852.
[6] What is the National Environmental Policy Act?, U.S. Envtl Protection Agency, https://www.epa.gov/nepa/what-national-environmental-policy-act#NEPA (last visited Mar. 30, 2020).
[7] Id.
[8] Beckett, supra note 1.
[9] Jim Cagney, Revise NEPA, But Not Now, Daily Sentinel, (Mar. 28, 2020), https://www.gjsentinel.com/opinion/columns/revise-nepa-but-not-now/article_b1d9bdb0-7135-11ea-a3ea-37e01d618164.html.
[10] Id.
[11] Id.
[12] Beitsch, supra note 3.
[13] Id.
[14] Cagney, supra note 8.
[15] Id.
[16] Id.
[17] Beckett, supra note 1.
[18] Id.
[19] Id.
[20] Steve C. Gold, Trump’s New Environmental Policy: Bury the Facts, NJ.com (Mar. 5, 2020) https://www.nj.com/opinion/2020/03/trumps-new-environmental-policy-bury-the-facts.html.
[21] Id.
[22] Beitsch, supra note 3.
[23] Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg. 1684 (proposed Jan. 10, 2020).
[24] Comments of Attorneys General of Washington, California, New York, District of Columbia, Connecticut, Delaware, Guam, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, & Vermont, to Edward A. Boling, Associate Director for the NEPA, Viktoria Z. Seale, Chief of Staff and General Counsel, & the Council on Environmental Quality, Re: Notice of Proposed Rulemaking – Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg. 1684 (Mar. 10, 2020) (copy on file on www.regulations.gov).
[25] Id. at 6.
[26] Tom Lalley, 20 Attorneys General Rail Against “Unlawful, Unreasonable, and Unjustified” Attack on NEPA, N.Y.U. Sch. of L.: St. Energy and Envtl. Impact Center (Mar. 11, 2020), https://www.law.nyu.edu/centers/state-impact/press-publications/press-releases/nepa-proposed-rule-comments.
[27] Id.
[28] Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg. 1684 (proposed Jan. 10, 2020).
[29] Letter from Thomas R. Carper, U.S. Senator, Tammy Duckworth, U.S. Senator, Cory Booker, U.S. Senator, Robert P. Casey, Jr., U.S. Senator, Kamala D. Harris, U.S. Senator, & Edward J. Markey, U.S. Senator, to Mary B. Neumayr, Chairman of the Council on Environmental Quality, RE: Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act (Mar. 9, 2020) (copy on file on www.regulations.gov).
[30] Id at 2.
[31] Id at 3.
[32] Id at 3.
[33] Noah Glick, Stakes High as Public Comment Period Closes on NEPA Reforms, Wyo. Pub. Media (Mar. 11, 2020), https://www.wyomingpublicmedia.org/post/stakes-high-public-comment-period-closes-nepa-reforms#stream/0.
[34] Keystone State News Connection, Conservationists: Proposed NEPA Changes Threaten PA Forests, Berk Community Television (Mar. 27, 2020), https://www.bctv.org/2020/03/27/conservationists-proposed-nepa-changes-threaten-pa-forests/.
[35] Id.
[36] Id.
