By Josh Bloom
The National Environmental Policy Act of 1969 (NEPA), signed into law by Richard Nixon, has stood as a bedrock of United States environmental policy since its enactment. Although procedural in nature, it was the predecessor to other landmark environmental statutes, such as the Clean Air Act and Clean Water Act, and ensured that federal agencies adequately considered and assessed the environmental impacts of proposed agency actions, and that the public be informed of the effects of those actions. The president’s Council on Environmental Quality (CEQ), which is the agency that oversees NEPA, issued comprehensive regulations in 1978, which for the most part have remained intact, until now.
Consistent with the Trump administration’s overarching anathema to environmental regulation, and making good on the president’s August 15, 2017 Executive Order, directing CEQ to overhaul its NEPA regulations to “simplify and accelerate” the NEPA review process, CEQ has now issued final regulations that greatly reduce a federal agency’s environmental review obligations, and in concert with that, limit the public’s role in assessing the environmental impacts of federal actions. 85 Fed. Reg. 43,304 (July 16, 2020). Once those regulations take effect on September 14, 2020, and together with the president’s June 4, 2020 Executive Order “Expediting Infrastructure Investments and Other Actions,” which was issued in response to the COVID-19 pandemic but more broadly seeks to provide yet further exemptions from environmental requirements for an array of projects, “environmental review,” at least for the time being, will be unrecognizable to those familiar with what that term has meant for the past forty-plus years.
When CEQ’s proposed its revised NEPA regulation in 2018, it garnered over one million comments (although in its preamble to the final regulation CEQ appears to dismiss the majority of those comments because “they were the result of mass mail campaigns.”) The final regulation, which, with its preamble comprise 73 pages of the Federal Register, substantially revises the prior regulations, some of those changes minor, but others that wholly redefine the scope of the NEPA implementation.
The final regulation limits the definition of “major Federal action,” which is a threshold for required review. NEPA provides that environmental impacts must be assessed for proposed major federal actions significantly affecting the environment. According to CEQ, the prior regulation impermissibly conflated “major” with “significant,” concluding that even non-major federal actions were inappropriately held subject to NEPA review requirements. In the revised regulation, CEQ removed the concept of significance from the “major Federal action” definition, and expressly excludes from the definition “non-Federal projects with minimal Federal funding or minimal Federal involvement where the agency does not exercise sufficient control and responsibility over the outcome of the project.”
Yet even more significant may be CEQ’s wholesale revision of how an agency must consider the “effects” of its proposed action. When required to undertake environmental review under NEPA, an agency as a matter of course needed to consider, among other things, indirect effects of its proposed action, direct effects, and cumulative impacts. The final revised regulation eliminates all of those markers. Instead, for an “effect” to be required to be considered, the effect from the action must be “reasonably foreseeable,” and have a “reasonably close causal relationship to the proposed action or alternatives.” Moreover, whereas, prior to this revision, an agency would need to consider effects that would not occur “but for” the agency action, that will no longer be the case when the new regulations become effective. According to CEQ, this substantial shift in assessing what is an “effect” of an action will save agency time and resources, and limit consideration of whether an action “causes an effect.” Moreover, effects will not be considered if remote in time, geographically remote, or the result of lengthy causal chain.
With regard to the public’s role, the final regulation removes specific criteria that guide the public review process. Now, any agency will be given greater discretion in determining what qualifies as appropriate public involvement. CEQ’s rationale for this change is that it gives the action agency much more flexibility to determine what is necessary for public involvement, in consideration of the “circumstances” of the proposed action. Other changes include allowing a private project proponent to prepare an environmental impact statement (although the federal agency remains ultimately responsible), and limiting the scope of what reasonable alternatives to the proposed action must be considered.
Perhaps the most significant consequence of the new regulations will be the extent to which an agency would need to consider the impacts of climate change. By only requiring consideration of reasonably foreseeable impacts, and of an environmental baseline by which to assess effects of an action that will now be measured simply by “predictable environmental trends in the area,” there is a real question with regard to the extent any agency will need to consider climate change.
As with almost every other environmental regulation the Administration has attempted to roll back, this too will be subject legal challenges. Those challenges will allege that the new regulation contravenes the statutory provisions of NEPA, and is arbitrary and capricious, in violation of the Administrative Procedures Act. Moreover, those challenges will likely seek to enjoin implementation of the new rules during the pendency of those lawsuits.
Joshua A. Bloom is a partner at Environmental General Counsel LLP.
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