On April 19, 2022, the Biden administration issued the first-phase rule of its two-phase rulemaking process to restore and update regulations under the National Environmental Policy Act (NEPA). NEPA, passed in 1969, is considered the grandparent of environmental laws. It requires federal agencies to examine the potential environmental impacts of major federal actions. The law itself is quite brief, and the specifics of its implementation have been achieved mainly through Council of Environmental Quality (CEQ) regulations, promulgated in 1978, that were largely based on early case law interpreting NEPA.
The long-standing NEPA regulations were effectively gutted during the final year of the Trump administration. The 2020 Trump rollbacks pared down core NEPA requirements such as the scope of impacts agencies must examine, the reasonable alternatives to the federal action that must be considered, and even the type of actions that require any NEPA review. The Trump regulations also made public participation more difficult as a result of tighter time frames for public comment and by allowing agencies to effectively dismiss comments if they don’t have a level of technical expertise that many community members will find hard to meet.
The rollbacks were born of a false narrative that NEPA’s “outdated regulations have slowed and impeded the development of needed infrastructure in communities across the nation.” Council on Env’t Quality, Fact Sheet: CEQ’s Proposal to Modernize Its NEPA Implementing Regulations (Jan. 10, 2020). To the contrary, NEPA has been an invaluable tool in ensuring public input and participation in major federal projects. NEPA review has often resulted in less environmentally impactful projects being chosen and has saved taxpayers millions of dollars. For example, among other successes over the years, NEPA has 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—when NEPA review led the George W. Bush administration to stop the Yazoo Backwater Pumping Plant project in Mississippi. It saved taxpayers $458 million when the review led the George W. Bush administration to protect a vital tidal inlet by stopping the Oregon Inlet Jetty Project in North Carolina. NEPA saved more than $685 million by revealing that improving existing roads would work just as well as building the proposed new bypass to reduce severe congestion in North Carolina. Additionally, in many instances, NEPA is the only opportunity that environmental justice communities have to weigh in on federal projects that significantly impact them.
Furthermore, the Congressional Research Service (CRS) has repeatedly concluded that “there is little data available to demonstrate that NEPA currently plays a significant role in delaying federal actions” and that “factors ‘outside the NEPA process’ were identified as the cause of delay between 68% and 84% of the time.” Cong. Rsch. Serv., RL33152, The National Environmental Policy Act (NEPA): Background and Implementation 26, 28 (updated Jan. 10, 2011). The CRS has also found that delays in federally funded highway projects are “more often tied to local/state and project-specific factors, primarily local/state agency priorities, project funding levels, local opposition to a project, project complexity, or late changes in project scope.” Cong. Rsch. Serv., R42479, The Role of the Environmental Review Process in Federally Funded Highway Projects: Background and Issues for Congress, at summary (Apr. 11, 2012).
Moreover, the vast majority of federal actions do not require a full environmental impact statement (EIS), but instead are reviewed under a less-comprehensive environmental assessment (EA) or are categorically excluded from the requirement for preparing either an EA or EIS. For example, the CRS found that only 4% of highway projects require an EIS while the remaining 96% are cleared with a minimal EA (6%) or are categorically excluded entirely (an overwhelming 90%). Out of all the federal actions subject to NEPA every year, a study found that only one out of 450 is subject to litigation. Hallie Ruttum & Linda Breggin, Env’t Law Inst., NEPA Compliance and Litigation: Maybe Not as Burdensome as Some Think (May 5, 2021).
These NEPA successes were achieved under the 1978 rules, which were left largely unchanged since their promulgation. The Biden administration’s Phase 1 rule addressed the worst of the Trump administration’s rollbacks. Specifically, it reinstated the requirement, reflected in ample case law, that agencies must consider the full suite of impacts in assessing a major federal action. These include direct, indirect, and cumulative impacts. With climate change and existing pollution problems placing growing burdens on many communities and natural resources, the full consideration of cumulative impacts is crucial to responsible and equitable decision-making.
The new Biden rule also restored the obligation and authority of agencies to broadly consider alternatives, including environmentally more beneficial alternatives that could save taxpayers significant money and promote more creative problem solving. The Trump regulations had allowed the project proponent to define the project in a manner that could greatly restrict the type of beneficial and cost-saving alternatives that an agency could and should consider. Finally, the new rule set the CEQ rules as a floor rather than as a ceiling in terms of what other agencies can require under NEPA. Because NEPA applies to all federal agencies, the agencies have their own implementing regulations. This change allows agencies to potentially require additional procedures or requirements beyond the CEQ baseline regulations.
While these changes are welcome and address the worst provisions of the Trump rule, without further action, they still leave NEPA hobbled. It is critically important that the Biden administration’s Phase 2 rulemaking fully reinstate the 1978 CEQ NEPA implementing regulations as the baseline for NEPA implementation. This includes resurrecting safeguards against conflicts of interest by the preparers of NEPA documents, such as a requirement that parties contracted to prepare NEPA documents specify that they do not have any financial other interest in the outcome of the project at issue. It also includes removing barriers to public participation by not allowing agencies to disregard comments that lack technical expertise—something that is often the case with comments submitted by traditionally marginalized communities. In addition, the tight time and page-limit restrictions that the Trump rules placed on the NEPA process should be changed because they can cause agencies to rush through complicated processes without allowing sufficient time for impacted communities to be able to understand and meaningfully engage on projects that could have long-term and significant impacts on them.
The Phase 2 rulemaking is also a chance to build on the 1978 rules by more explicitly confronting the challenges of the twenty-first century and fulfilling the Biden administration’s goals of elevating the voices of environmental justice communities and confronting climate change. The Phase 2 rule could increase engagement of historically marginalized and tribal communities by requiring agencies to identify those communities and then conduct meaningful outreach to them to help ensure that they are aware of a federal action and have access to tools to engage the NEPA process in an effective way. It could require agencies to appropriately define the “affected area” to capture potential impacts to environmental justice communities and tribes that might otherwise be overlooked by placing arbitrary or ecologically inappropriate restrictions on the extent of the “affected area.” It could further require agencies to conduct social and health impact assessments to better and more fully account for the impact of projects on environmental justice and tribal communities.
In terms of addressing climate change, while the case law is pretty clear that climate change impacts need to be considered, CEQ should ensure assessment of the increasingly severe and dangerous impacts of climate change by adding climate impacts to the definition of “effects.” CEQ should also clarify that properly assessing the effects of climate change means looking at not only the impacts of a project on climate change, but also the impacts of climate change on the project as conditions may quickly change over time. It could also put an emphasis on using NEPA as tool to advance federal initiatives that help curb emissions and protect communities from climate threats.
While the above is not a complete list, such measures would certainly go a long way in making NEPA an even more effective tool in ensuring that federal actions are taken only after consideration has been given to how those actions will impact all affected communities and adequately considering climate change, as well as evaluating alternatives that may save money and result in more benefits to communities and the environment. Social and climate justice require sunlight, and NEPA is a sunlight statute. The Trump administration’s rule sought to draw the shades on NEPA. The Phase 2 rulemaking is an opportunity to again open the shades and shed light on some of our most profound challenges and how government actions can help solve them.
