by Adam Carlesco
Last year Trump’s administration finalized drastic changes to how federal agencies perform environmental review under the National Environmental Policy Act (NEPA). It resulted in the gutting of public engagement requirements, expansion of the exemption list, and narrowed the scope of review. As part of a coalition, Food & Water Watch sued the administration for violating clear statutory requirements. Now the Biden administration, rather than repeal the 2020 rules, has decided to piecemeal tweak the Trump administration’s handiwork. The White House Council on Environmental Quality (CEQ) oversees how all federal agencies implement the environmental review requirements of NEPA. They recently issued a “Phase 1” rulemaking to address issues with the 2020 rulemaking. Rather than return to rules that guided federal agencies for over forty years, the Biden CEQ has largely accepted the 2020 alterations. They are changing only three of the most grievous mistakes.
The Changes Proposed By CEQ Are Needed, But Aren’t Enough
This draft Phase 1 rulemaking proposes reinstating the definition of “effects” to include indirect and cumulative impact. This will require agencies to review climate impacts of permitting decisions. This proposal would also make CEQ’s rules the regulatory floor for agencies – not a ceiling like 2020’s rules. That means individual agencies can make their own agency-specific NEPA review requirements that are more stringent than CEQ’s. Additionally, the proposed rule looks to expand alternative analyses of a proposed project. The Trump administration required that all determinations of need and consideration of alternatives “meet the goals of the applicant.” This let industry developers narrowly define the scope of projects so that few or no alternatives met their stated goals.
While the amendments made within this proposed rule are necessary, they largely neglect the voluminous deficiencies of the 2020 rules. A complete repeal of 2020’s rules and reinstatement of those that have governed NEPA for decades would be most appropriate.
The White House Council on Environmental Quality Should Entirely Repeal the 2020 NEPA Rules
The 2020 changes went further than removing indirect and cumulative effects consideration and instituting a ceiling on agency NEPA implementation:
- They restricted public engagement;
- They let project developers (like pipeline companies) set the government’s scope of review;
- And they even allowed developers to start some construction before the review begins.
The 2020 rules also expressly exempted federal loan guarantees to would-be factory farm operators and vastly expanded categorical exclusions. That allows potentially harmful projects to entirely evade environmental review. The 2020 rules moved the goal posts for requiring an in-depth environmental review by redefining the term “major federal action.” It also allowed more projects to evade such in-depth review by expanding mitigated findings of no significant impact. These are just the most glaring issues – many more can be found within the 2020 rules.
Additionally, the 2020 rules introduced subtle language changes that greatly alter how agencies proceed with environmental review of proposed projects. These shifts are almost entirely to the detriment of the public and environment. The sheer volume of changes in the 2020 regulations underpin numerous threats to public health. A piecemeal approach to amending Trump’s regulatory framework is not enough to adequately address them.
Tell The Biden Administration To Repeal Trump’s NEPA Rules, Not Tweak Them
The Trump administration’s changes to how the federal government reviews the environmental impacts of projects are pervasive and detrimental. We cannot simply amend them. The 2020 NEPA rules are beyond reform and require total repeal before making any future changes to the NEPA process. Through omission, CEQ’s tweaks to the 2020 rules would cement many of their serious deficiencies, including Trump’s expanded exclusions. The good news is at this time it’s only a proposal. CEQ requests all interested members of the public provide them with comments by November 22, 2021. Now is our opportunity to influence how the final rule takes form.
Ask CEQ to completely repeal the 2020 rules Trump instituted! Our future depends on it.