White House Issues First Round of NEPA Regulation Re-Rewrites
October 8, 2021|Jeff Davis
This week, the Council on Environmental Quality (CEQ) issued the first of multiple forthcoming rules undoing changes made by the Trump Administration in the regulations defining and implementing the National Environmental Policy Act of 1970 (NEPA).
The new rule appeared in yesterday’s Federal Register and is part of a broader rollback of Trump environmental rules that dated back to President Biden’s first day in office. On January 20, 2021, President Biden signed Executive Order 13990, which repealed a number of Donald Trump’s executive orders and actions relating to the environment, including Trump’s Executive Order 13807 of August 15, 2017, which established new procedures for permitting of infrastructure projects.
Section 5(e) of Trump’s EO 13807 ordered CEQ to form a working group to “review the NEPA implementing regulations and other environmental review and authorization processing policies…identify impediments to efficient and effective environmental reviews and authorizations for infrastructure projects.” A result of that process was the first major rewrite of NEPA regulations since the first rules in 1978, as made final in a July 16, 2020 final rulemaking (summarized by ETW here).
As part of his Inauguration Day EO 13990, President Biden specifically ordered CEQ to review the Trump-era NEPA rule, and the new proposed rule issued yesterday is the initial result. The new rule only makes a handful of changes to the Trump-era NEPA regs (though they are of pivotal importance). The rulemaking explains that this is intended to be the first part of a multi-part process:
CEQ intends to reconsider and revise the 2020 NEPA Regulations using a phased approach. This NPRM initiates a ‘‘Phase 1’’ rulemaking to focus on a discrete set of provisions. In identifying what provisions to address in Phase 1, CEQ focused on the provisions that (1) pose significant near-term interpretation or implementation challenges for Federal agencies and would have the most impact to agencies’ NEPA processes during the interim period before a ‘‘Phase 2’’ rulemaking is complete; (2) make sense to revert to the 1978 regulatory approach for the reasons discussed in Part III of this preamble; and (3) CEQ is generally unlikely to propose to further revise in a Phase 2 rulemaking…
In Phase 2, CEQ intends to issue a second NPRM to more broadly revisit the 2020 NEPA Regulations and propose further revisions to ensure that the NEPA process provides for efficient and effective environmental reviews that are consistent with the statute’s text and purpose; provides regulatory certainty to Federal agencies; promotes better decision making consistent with NEPA’s statutory requirements; and meets environmental, climate change, and environmental justice objectives.
There is another reason for the two-phase approach that CEQ is conveniently not mentioning. Part of Trump EO 13807 that was repealed by Biden EO 13990 is the “One Federal Decision” interagency coordination process for NEPA and other environmental reviews. And, while many Trump-era environmental actions resulted in partisan hard feelings, much of the One Federal Decision stuff had a lot of bipartisan support on Capitol Hill, to the point that Biden’s repeal, with no coordination process to take its place, looks like the opposite of progress to many. (Old joke: if “pro” is the opposite of “con,” what’s the opposite of “progress”?)
Because of the bipartisan popularity of One Federal Decision and a few other scattered elements of the Trump approach to permitting reform, the Senate-passed bipartisan infrastructure bill (Senate amendment to H.R. 3684) has an entire subtitle called “Project Delivery and Process Improvement,” and the very first section in that subtitle is section 11301, “Codification of One Federal Decision.” (The project delivery subtitle is on pages 245 to 300 of the Senate amendment.)
As a result, CEQ can’t very well repeal some aspects of the Trump-era NEPA implementation rules if President Biden is about to sign into law provisions ordering CEQ to obey those rules or something very akin to those rules. Phase 2 will be delayed until we see if the BIB actually does get signed into law and will be written with that in mind, especially to the extent that the new law clashes with any of the policies that Biden’s January 2021 orders suggested.
The Phase 1 rule sticks to a few technical changes (taking the repealed Trump EO out of the mention of justifications for rules) and sticks to a couple of basic definitions that are fundamental to NEPA and are beyond the scope of anything in the BIB. Particularly, to the definitions in part 1508 of the NEPA regulations, where the new Biden rule returns the text to the way it was pre-Trump (if a bit rearranged).
|§1508.1(g) Effects or impacts means changes to the human environment from the proposed action or alternatives and include the following:
(a) Direct effects, which are caused by the action and occur at the same time and place.
(b) Indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems.
(3) Cumulative effects, which are effects on the environment that result from the incremental effects of the action when added to the effects of other past, present, and reasonably foreseeable actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative effects can result from individually minor but collectively significant actions taking place over a period of time.
(4) Effects include ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative. Effects may also include those resulting from actions which may have both beneficial and detrimental effects, even if on balance the agency believes that the effects will be beneficial.
|§1508.1(g) Effects or impacts means changes to the human environment from the proposed action or alternatives that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives, including those effects that occur at the same time and place as the proposed action or alternatives and may include effects that are later in time or farther removed in distance from the proposed action or alternatives.
(1) Effects include ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic (such as the effects on employment), social, or health effects. Effects may also include those resulting from actions that may have both beneficial and detrimental effects, even if on balance the agency believes that the effect will be beneficial.
(2) A ‘‘but for’’ causal relationship is insufficient to make an agency responsible for a particular effect under NEPA. Effects should generally not be considered if they are remote in time, geographically remote, or the product of a lengthy causal chain. Effects do not include those effects that the agency has no ability to prevent due to its limited statutory authority or would occur regardless of the proposed action.
(3) An agency’s analysis of effects shall be consistent with this paragraph (g). Cumulative impact, defined in 40 CFR 1508.7 (1978), is repealed.
There was also a change in the definition of “reasonable alternatives.” Note the reference to the “goals of the applicant” is now dropped.
(z) Reasonable alternatives means a reasonable range of alternatives that are technically and economically feasible, and meet the purpose and need for the proposed action.
(z) Reasonable alternatives means a reasonable range of alternatives that are technically and economically feasible, meet the purpose and need for the proposed action, and, where applicable, meet the goals of the applicant.
The comment period on this proposed Phase 1 rule closes on November 22, 2021.