Proposal Aims to Restore NEPA Regulations
The White House Council on Environmental Quality announced this month that it plans to reinstate federal regulations of the National Environmental Policy Act regarding environmental reviews of major infrastructure projects. The proposal is part of the Biden Administration’s steps to tackling the climate crisis.
The Trump Administration had changed these rules in 2020 to not only reduce the number of projects that require federal review, but also narrow the scope considered under those reviews. The changes came in a response to expedite projects and boost the economy impacted by COVID-19.
“The National Environmental Policy Act is critical to ensuring that federal project managers look before they leap—and listen to experts and the public on a project’s potential impacts to people and wildlife alike,” said Mustafa Santiago Ali, Vice President of Environmental Justice, Climate and Community Revitalization for the National Wildlife Federation, in an interview.
“This proposed rule will help restore several foundational NEPA protections that were stripped away by the previous administration, making a sham of the NEPA process.”
According to the White House press release, the CEQ’s proposal includes changes to the NEPA in two phases. Phase 1 would restore three core procedural provisions from the 2020 NEPA rules:
Phase 2, which is expected to be proposed over the coming months, would include NEPA regulations to:
“The basic community safeguards we are proposing to restore would help ensure that American infrastructure gets built right the first time and delivers real benefits – not harms – to people who live nearby,” said CEQ Chair Brenda Mallory. “Patching these holes in the environmental review process will help reduce conflict and litigation and help clear up some of the uncertainty that the previous administration’s rule caused.”
The CEQ hosted two online public meetings for comments on the proposed rule and will accept comments through late November. The rule change is reportedly expected to become final early next year.
Trump Administration NEPA Changes
In February 2020, the Trump Administration announced a proposed rule to modernize and accelerate how environmental reviews were conducted under the NEPA.
According to reports, the NEPA regulations hadn’t been updated in over 40 years and the last time an amendment was made had been in 1986 by the Council on Environmental Quality.
In reducing what the White House described as unnecessary burdens and delays, the administration is proposed that future time limits for completing environmental impact statements were limited to two years and that environmental assessments were to be completed within one year.
However, the proposed changes exempted projects that weren’t primarily federally funded.
Along with the adjusted timelines, the proposal also specified page limits for these forms of documentation and promoted information-sharing through technology. The rule also stated that agencies would be allowed to establish procedures for adopting another agency’s determinations.
Opposition followed the proposal, from environmental advocates who expressed concern over the possibility that more projects that affect the climate crisis will get pushed through.
The action came after Trump signed an Executive Order the month prior advising federal agencies to expedite infrastructure investments and other activities as to accelerate the United States’ economic recovery from the COVID-19 pandemic.
The final rules did not deviate much from the proposals in January and noted that federal agencies no longer had to factor in “cumulative impacts” of a project, such as impacts on the environment or climate.
The following month, just weeks after the Trump administration finalized the changes to the NEPA, two environmental groups (culminating in more than 35 organizations) sued the White House.
The suits were led by both the Southern Environmental Law Center (SELC) and Earthjustice and challenge not only the rollbacks of the new rule, but also how the new rule was enacted.
Several lawsuits had been filed according to the National Law Review, including:
The lawsuit stated: “In its most recent opinion on the strictures of the Administrative Procedure Act, the Supreme Court affirmed that 'the Government should turn square corners in dealing with the people' … In other words, while the federal government has the ability to change policies, rules and regulations, it must follow the law, not cut corners, when it does so.”
The other arguments challenged the changes made to the scope of the environmental reviews, particularly the removal of “cumulative impacts.”
Changes to the NEPA went into effect in September 2020 after a district court judge dismissed the request for a preliminary injunction on the changes.