2019 Vermont Law Top 10 Environmental Watch List

Launching the Trump Administration Assault on NEPA

In 2018, the Trump administration launched a process apparently aimed at radically overhauling how federal agencies analyze the potential environmental consequences of their proposed actions, and alternatives to those actions, under the National Environmental Policy Act (NEPA). How far this effort will go will become apparent in the year ahead.

02_TrumpNEPANEPA, popularly known as the Magna Carta of United States environmental law, was signed into law by President Richard M. Nixon on Jan. 1, 1970. The purposes of the act include to “encourage productive and enjoyable harmony between man and his environment,” and to “promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man.” The act declares a “continuing policy” of the U.S. government, working in cooperation with state and local governments as well as private organizations, “to use all practicable means and measures … 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.”

The act’s most famous “action-forcing” mechanism is the requirement that all federal agencies prepare an “environmental impact statement” (or “EIS”) prior to undertaking any “major Federal action significantly affecting the quality of the human environment.” An EIS must include a “detailed statement” about the environmental impact of the proposed action; any adverse environmental effects that cannot be avoided; alternatives to the proposed action; the relationship between local, short-term uses of the environment and maintenance and enhancement of long-term productivity; and any irreversible and irretrievable commitments of resources resulting from the proposed action. NEPA’s EIS requirement, it is often said, is “essentially procedural,” requiring agencies to disclose the potential environmental effects of their actions but not dictating how agencies must act.

Over the course of the nearly 50 years since NEPA’s adoption, there have been many intervening developments relating to the effectiveness of this landmark statute. One of the most significant was the publication by the Council on Environmental Quality (CEQ), during the administration of President Jimmy Carter, of comprehensive regulations implementing NEPA.  Drafted under the direction of then CEQ Chairman Gus Speth, the 1978 regulations lay out detailed standards on such topics as when NEPA must be applied in the agency decision-making process, in what circumstances preparation of an EIS is required, the mandatory contents of an EIS, the process for interagency consultation in the preparation of EISs, and how public input should be solicited and incorporated, among other topics.

Remarkably, except for one notable amendment (the elimination of the so-called “worst case” analysis requirement, during the administration of President Ronald Reagan), the 1978 CEQ regulations have remained unchanged for 40 years. Courts have repeatedly cited the regulations. NEPA practitioners rely of the regulations day in and day out to carry out the goals of NEPA. Over time, the regulations have become the foundation for a large and stable body of NEPA law to guide all participants in the NEPA process. The success of NEPA is highlighted by the fact that it is one of our nation’s most successful exports; over 160 other countries have adopted their own versions of NEPA.

On June 20, 2018, the Trump Council on Environmental Quality issued a so-called “advance notice of proposed rule-making” that has stirred up considerable concern among environmentalists and others. The notice blandly solicits public input “on potential revisions to update the regulations and ensure a more efficient, timely, and effective NEPA process.” But the notice then goes on to list 20 separate questions, many with multiple subparts, soliciting comments, including “recommendations on additions, deletions, and modifications” to the regulations. As a coalition of major environmental groups observed in commenting on the notice, “the breadth of the questions posed” in the notice “seems to reflect an intention to fundamentally change the NEPA process.”

While the questions in the notice are somewhat neutral in tone, the clear thrust of the questions is to seek out ways to eliminate “burdens and delays” generated by the NEPA process rather than, for example, to improve on the accuracy of the environmental analysis in NEPA documents or to gather more and better public input. While few would question the value of reducing burdens and eliminating delays, the concern is that the Trump administration appears to be pursuing these goals at the expense of the act’s basic goals. As a group of law professors commented, “[j]ust as a foolish consistency is the hobgoblin of small minds, so too is fixation on efficiency without adequate consideration of the tradeoffs between the time and resources dedicated to NEPA procedures and the quality of the environmental reviews, public engagement, and information generated for agency decision-makers.”

These concerns of defenders of NEPA about where the Trump administration may be headed are reinforced by prior administration statements exhibiting not only a willingness to reexamine longstanding NEPA policy, but a policy agenda narrowly focused on increased efficiency and burden-lifting. Most notably, on Feb. 12, 2018, the White House published an official release titled “Legislative Outline for Rebuilding Infrastructure in America” that lays out a series of proposed changes to the NEPA process. As the title of this publication suggests, it is designed to promote President Trump’s stated aim of rebuilding America’s infrastructure, and the various proposed NEPA reforms are presented in service of that goal. But the proposals relating to NEPA included in this publication stretch beyond infrastructure and are likely to reappear in the CEQ rulemaking proceeding.

Some of the notable recommendations in the Rebuilding Infrastructure report include the following:

• Establish a “firm” two-year deadline for the completion of the NEPA review process, with a maximum of 21 months allotted to the environmental review process, and three additional months for the agency to make its permitting decision. While two years from start to finish of the NEPA process is possible for simple projects with straightforward impacts, it will often be insufficient for complex, controversial projects. An arbitrary deadline for completing the NEPA process risks producing defective EISs that will be rejected by the courts.

• Narrow the range of alternatives that agencies need to consider in their EISs, undercutting the principle that consideration of alternatives is the “heart” of the NEPA process.

• Eliminate the responsibility of the Environmental Protection Agency (EPA) in reviewing and scoring most EISs, as prescribed by Section 309 of the Clean Air Act. As the nation’s lead environmental agency, the EPA brings considerable expertise to the NEPA process and its independent review of environmental impact statements improves the quality of NEPA reviews.

• Expand the list of “categorical exclusions” from the NEPA process, allowing more projects to go forward without any environmental impact analysis.

• Short-circuit the NEPA process by allowing highway contractors to conduct final design activities, or by allowing railroad companies to acquire rights-of-way, before the NEPA review process is complete. Prejudging issues being evaluated in the NEPA process not only risks biasing the analysis, but also would defeat the mandate to consider alternatives that might reduce environmental impacts.

• Grant project proponents more opportunities to contribute funds to pay contractors to prepare EISs, creating serious questions about potential bias and conflicts of interest.

As of December 2018, the Council on Environmental Quality had received over 12,000 individual comments in response to the notice of advanced rule-making, indicating the breadth and depth of public feeling about NEPA. CEQ staff is apparently now in the process of digesting the comments and preparing the text of an actual proposed rule that will presumably be published for public comment sometime next year. Then the sparks will really begin to fly.