July 27, 2020

Undercutting Environmental Law’s Magna Carta

by Jim Murphy

Passed in 1969, the National Environmental Policy Act, or NEPA, is considered the Magna Carta of environmental laws. On its face, NEPA only sensibly requires that for “major Federal actions significantly affecting the quality of the human environment, a detailed statement” be prepared that, among other things, consider the environmental impact of the proposed action, any adverse environmental effects which cannot be avoided should the proposal be implemented, and alternatives to the proposed action. 42 U.S.C § 4332. Other than this “hard look” at the environmental impacts of major federal actions, NEPA demands little. The agency need not choose the least environmentally damaging alternative, abandon, or change the project as a result of its “hard look.” Yet, the statute has been revolutionary in its vision and impact.

After decades of relatively unchecked pollution, its purpose was “[t]o declare a national policy which will encourage productive and enjoyable harmony between man and his environment to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man.” 42 U.S.C. § 4321. NEPA represented a fundamental value shift; under NEPA, the costs and impacts of our actions on the environment no longer would be ignored in decision-making processes.

Early on, courts made clear that the requirements of NEPA must be carried out “to the fullest extent possible” (see, e.g., Calvert Cliffs’ Coordinating Comm., Inc. v. U. S. Atomic Energy Commission, 449 F.2d 1109, 1114 (D.C. Cir. 1971)), and that Congress was concerned with “all potential environmental effects that affect the quality of the human environment” (Hiram Clarke Civic Club v. Lynn, 476 F.2d 421, 427 (5th Cir. 1973)), including cumulative effects (Hanley v. Kleindienst, 471 F.2d 823, 831 (2d Cir. 1972), cert denied, 412 U.S. 908 (1973)), and indirect effects. Minn. Public Interest Research Group v. Butz, 498 F.2d 1314, 1322 (8th Cir. 1974).

Since 1978, the mandates of NEPA have been implemented through Council of Environmental Quality (CEQ) regulations and a substantial body of federal case law that preceded and has evolved along with those regulations, as well as agency specific rules and guidance. During this time, NEPA has worked to help move federal projects in a direction that has resulted in environmental benefits and wiser use of taxpayer dollars. Now, the Trump administration has proposed sweeping changes, claiming that “the outdated regulations have slowed and impeded the development of needed infrastructure in communities across the nation.” Fact Sheet: CEQ’s Proposal to Modernize its NEPA Implementing Regulations. These changes would turn this paradigm shifting statute into a mere check-the-box exercise, effectively gutting it.

The existing CEQ NEPA regulations require all agencies to perform an environmental assessment for major federal action where the agency must determine whether to perform an environmental impact statement (EIS) or issue a finding of no significant impact (FONSI). 40 C.F.R. parts 1500-08. These regulations, inter alia, require that the agency broadly consider the direct, indirect, and cumulative impacts, as well as all reasonable alternatives of a major federal action. They also ensure meaningful opportunities to engage the public and other federal, state, tribal and local agencies in the NEPA process. The regulations further allow for many actions to escape individual review altogether through the use of categorical exclusions.

The environmental benefits of these regulations have played out in the following three water resources projects: (1) preparation of a supplemental environmental impact statement led the U.S. Army Corps of Engineers (Corps) to save more than 4,300 acres of wetlands that would have been destroyed had the Corps followed its original plan for raising levees along the Mississippi River; (2) environmental review of the proposed Bolinas Lagoon dredging project in California demonstrated that the Corps’ proposal would cause extensive harm to one of the most pristine tidal lagoons in California and was not necessary, saving taxpayers $133 million; and (3) the environmental review process exposed the devastating environmental impacts of the Yazoo Backwater Pumping Plant project in Mississippi, prompting the George W. Bush administration to veto the project. This saved taxpayers more than $220 million and protected 200,000 acres of wetlands—an area the size of all five boroughs of New York City. And the regulations have had similar beneficial effects in other projects including highways, pipelines, airports, and other federal actions.

Contrary to CEQ’s claim that the existing regulations pose a roadblock to economic growth, the vast majority of NEPA reviews are carried out in a very short time frame, in large part because of the flexible structure of the current rules. According to the Government Accounting Office, approximately 95 percent of all projects subject to NEPA are carried out through the categorical exclusion process, another four percent of projects are reviewed through environmental assessments, and less than one percent of projects are reviewed using the more comprehensive EIS. Government Accountability Office, National Environmental Policy Act: Little Information Exists on NEPA Analyses, GAO-14-370 (Apr. 2014) at 8. The Congressional Research Service thus has concluded that “there is little data available to demonstrate that NEPA currently plays a significant role in delaying federal actions.” Congressional Research Service, The National Environmental Policy Act (NEPA): Background and Implementation, RL33152 (Jan. 10, 2011) at 26.

Despite this, the Trump administration has proposed a rule that would severely hobble NEPA. Described below are some of the most significant ways in which the proposed rule would weaken NEPA.

Eliminate NEPA review for many projects. The proposed rule excludes many projects from NEPA review. It changes the definition of “major federal action” to allow for projects with significant impacts to escape review under certain circumstances. It also allows agencies to exempt a project from NEPA review by determining that an analysis under a different statute could serve the same purpose, even if that analysis is not as searching or the agency lacks environmental expertise.

Ignore many impacts. The proposed rule severely limits the types of impacts examined when a NEPA review is carried out. It boldly states that analysis of cumulative effects “is not required” (Proposed 40 C.F. R. § 1508.1(g)(2), 85 Fed. Reg. 1684, 1729 (Jan. 10, 2020)), thus likely eliminating review of a project’s role in exacerbating climate change and many other types of harm to the environment, public safety and health. Agencies also could ignore many types of severe impacts based on the proposed rule’s elimination of all references to “indirect” effects, and its directive to review only impacts with a “reasonably close causal relationship” to the proposed action. These changes would encourage agencies to ignore long-term impacts such as toxic pollution from gold or copper mines, the risks of new levees diverting floodwaters onto other communities, and the loss of wetlands caused by reservoir management practices that starve a river of the water flows needed to sustain those wetlands.

Significantly weaken review of alternatives. The proposed rule significantly weakens the assessment of alternatives during a NEPA review, dramatically undermining NEPA’s fundamental purpose of exploring less environmentally harmful approaches to achieving the project purpose. The proposed rule eliminates the requirements to “rigorously explore and objectively evaluate all reasonable alternatives” and to consider reasonable alternatives not within the jurisdiction of the lead agency. It instead directs a much less extensive review, requiring only that agencies “evaluate reasonable alternatives to the proposed action.” Proposed 40 C.F.R. § 1502.14, 85 Fed. Reg. at 1721. These changes, along with the proposed changes to the “purpose and need statement” which gives undue weight to the applicants said purpose, virtually guarantee that many cost-saving, reasonable alternatives with fewer adverse environmental impacts will not be considered.

Allow agencies to ignore critical public input. The proposed rule would let agencies ignore public comments that they deem are not “specific” enough or do not include references to data sources or scientific methodologies. It improperly places the burden on the public to list any and all possible impacts of a proposed project, to provide specific language changes, and to “explain why an issue raised is significant” to the consideration of impacts to the environment, the economy, employment and potential alternatives. Proposed 40 C.F.R. § 1503.3(a), 85 Fed. Reg. at 1722. Comments most likely to be ignored as a result of this change include those from the general public, those from frontline communities without resources to fund technical reviews, and those that rely on traditional knowledge rather than technical data.

Eliminates conflict of interest safeguards. The proposed rule eliminates longstanding safeguards designed to protect the independence and integrity of environmental reviews. Under the current regulations, federal agencies prepare NEPA reviews, and agencies can only hire consultants to assist in a NEPA review after obtaining disclosures of any conflicts of interest or financial stakes the reviewing consultant may have in the project. The proposed rule, however, lets companies proposing a project prepare their own NEPA reviews – despite their clear interest in obtaining project approval. Agencies also could hire contractors without obtaining a conflict of interest disclosure.

These extensive changes would transform NEPA’s action-forcing mechanisms into little more than a paperwork “check-the-box” exercise that ignores major impacts and stymies public input. Today, as we face unprecedented challenges of a global public health crisis and the impacts of climate change on our daily lives, the need to incorporate thoughtful consideration of how proposed projects impact our environment is more important than ever. We should be strengthening the NEPA decision-making process to better ensure that the full costs of our actions on the environment are known, not seeking to hide these costs. If we ignore these costs, one way or another, they will come due.

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Jim Murphy

Mr. Murphy is Director, Legal Advocacy with the National Wildlife Federation (NWF), and a member of the editorial board of Natural Resources & Environment. He lives in Montpelier, Vermont and can be reached at jmurphy@nwf.org. He would like to acknowledge the assistance of NWF Senior Counsel Melissa Samet in preparing this article.