Trump's NEPA Reform Is Essential For Energy Development

This article originally appeared in Law360.

The White House Council on Environmental Quality’s proposed update to the procedural regulations under the National Environmental Policy Act[1] offers an opportunity to unleash the infrastructure required for sustainable 21st century energy.

The CEQ’s concise proposed rule, comprising fewer than 20 pages, provides a long overdue tune-up to NEPA’s regulations, which the CEQ last substantively addressed in 1978. The proposed rule codifies basic and universal concepts of good government, such as accessibility, transparency and accountability, which span political partisan divides.

NEPA, which turned 50 years old earlier this year, serves as the procedural statute governing how federal agencies conduct environmental reviews and related permits for all kinds of infrastructure projects including highways, agriculture and offshore wind farms. Necessity serves as the primary catalyst for the broad consensus in favor of reform.

Amy Farrell, Senior Vice President of the American Wind Energy Association, has said “[i]t is time to update and modernize the permitting process. Infrastructure projects, including land-based and offshore wind energy and transmission development, have encountered unreasonable and unnecessary costs and long project delays.”[2] President Barack Obama’s former CEQ Chair, Christy Goldfuss, has acknowledged that “[w]e have to get better at building big projects. Since the Hoover Dam, it's been a serious problem.”[3]

Predictably, not everyone has assumed a sober and dispassionate stance with respect to the CEQ’s proposed rule. Critics of NEPA reform argue that the proposed rule amounts to a conspiracy to roll back regulations, deliver a handout to polluters and stifle public input on the process.

The text of the CEQ’s thoughtful proposal betrays the first two charges, while the two- month comment period (which follows an advance notice of proposed rulemaking[4]) plus two public hearings nullifies the third curious charge regarding process. An informed decision on the merits of the CEQ’s proposed rule requires careful review and consideration of the proposed rule text itself.

First, the proposed rule does not eliminate any requirement that agencies consider greenhouse gas emissions when conducting NEPA reviews. Consistent with U.S. Supreme Court precedent since the NEPA regulations were originally promulgated, the proposed rule requires agencies to consider all effects or impacts of a proposed action, as long as those effects are reasonably foreseeable and have a reasonably close causal relationship to the action.[5] The proposed rule retains the requirements in the current rule for agencies to consider all “ecological[,] … natural resources[,] … aesthetic, historic, cultural, economic, … social, [and] health effects.”[6]

Even though the proposed rule eliminates the requirement for agencies to consider “cumulative effects,” only a handful of very recent precedents have ever required agencies to consider climate change as a “cumulative effect,”[7] and this requirement is not part of the NEPA statute. The CEQ notes that “categorizing and determining the geographic and temporal scope of [cumulative] effects has been difficult and can divert agencies from focusing their time and resources on the most significant effects.”[8]

Some courts have required agencies to consider greenhouse gas emissions beyond the footprint of a project,[9] finding such emissions to be reasonably foreseeable and reasonably related to the project, while others have declined to do so.[10] The proposed rule does nothing to alter that case-by-case analysis that lies at the heart of NEPA and furthers its major purpose to aid in informed government decision-making.

Second, the proposal does nothing to limit public participation in NEPA reviews. In fact, it reaffirms the current processes providing for robust public input, directing agencies to more clearly solicit and respond to particular comments during the comment period.

The proposed rule includes a new requirement that “agencies shall include a request for comments on potential alternatives and impacts, and identification of any relevant information, studies, or analyses of any kind concerning impacts affecting the quality of the human environment.”[11] It also includes a new requirement that agencies submit environmental impact statements for public review “[a]s soon as practicable after determining that a proposal is sufficiently developed.”[12]

It reaffirms existing requirements that agencies “affirmatively solicit[] comments in a manner designed to inform those persons or organizations who may be interested in or affected by the proposed action” and includes new guidelines on the content of comments.[13] It also imposes new requirements that agencies “shall provide for electronic submission of public comments, with reasonable measures to ensure the comment process is accessible to affected persons.”[14]

These changes should help focus public comments on the issues of major relevance to decision-makers, resulting in better decisions, and direct agencies to be more transparent and accessible to the interested public.

Perhaps most important among the changes proposed by the CEQ are clearer directions to agencies to engage in coordinated, efficient and timely reviews that will benefit all kinds of projects, including solar facilities on federal lands, wind farms in offshore federal waters and hydroelectric facilities, and help bring more clean-burning natural gas to markets to generate electricity when these intermittent sources do not.

The proposal codifies the “one federal decision” concept, already directed by executive order,[15] putting one agency at the helm of complex projects that require multiple approvals to ensure reviews are conducted in a coordinated fashion. It also sets clear but flexible page limits on environmental review documents, and sets two-year time limits on the longest type of environmental reviews,[16] a much-needed change from the average review time, which the CEQ’s own data pegs at over four years.[17]

Despite the careful and necessary reforms the CEQ has proffered in the proposed rule, countless press releases and social media postings have maligned this serious regulatory reform process that began over a year and a half ago. The CEQ is poised to accomplish an important achievement that eluded past administrations, both Democratic and Republican. These critics will certainly have their voices heard and will likely deliver thousands if not millions of comments in opposition to the proposed rule.

The CEQ should carefully consider those criticisms, but will find that they are unfounded. The CEQ’s proposed reform to NEPA should be finalized as soon as practicable to further American energy progress in 2020 and beyond. Environmental stewardship and badly needed infrastructure development should not be a binary choice — both must be accomplished with integrity and a sense of urgency.

API Senior Counsel Ben Norris contributed to this post.

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[1] 85 Fed. Reg. 1,684 (Jan. 10, 2020).

[2] https://www.washingtonexaminer.com/policy/energy/trumps-overhaul-of-environmental-permitting-could-help-clean-energy-build-out.

[3] Id.

[4] 83 Fed. Reg. 28,591 (June 20, 2018).

[5] Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 767-68 (2004); Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 776 (1983).

[6] 85 Fed. Reg. 1,729.

[7] See, e.g., WildEarth Guardians v. Zinke, 368 F.Supp.3d 41, 75-77 (D.D.C. 2019).

[8] 85 Fed. Reg. 1,708.

[9] See, e.g., Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017).

[10] See, e.g., EarthReports Inc. v. FERC, 828 F.3d 949 (D.C. Cir. 2016).

[11] 85 Fed. Reg. 1,716.

[12] Id.

[13] Id. at 1,722.