Trump administration finalizes revamp of NEPA regulations to streamline permitting

The White House announced July 15 the completion of a revamp of regulatory requirements for how federal agencies fulfill the mandates of the National Environmental Policy Act (NEPA).

The requirements apply to reviews of proposals for oil and natural gas exploration, pipelines, refinery expansions, or a host of other commercial and industrial actions if they require a federal permit, such as a Clean Water Act permit to disturb as wetland.

Under the final rule from the White House Council on Environmental Quality (CEQ), environmental reviews are to be done faster and with a narrower focus to streamline permitting decisions.

The NEPA “modernization” includes a target of 2 years for completing an environmental impact statement (EIS) and 1 year for completing an environmental assessment, plus a push for agencies to adopt length limits on documents. Work on an EIS often takes 4 years or more for a large project.

The rule directs multiagency reviews to develop a single EIS and a single record of decision where appropriate, and strengthens the role of a lead agency in riding herd on the other agencies involved in a permit review.

Fine tuning in final rule

The CEQ made a number of changes between the proposed and final versions of the rule. In response to concerns about eliminating a regulatory requirement for cumulative impact assessments, the CEQ said analyses can discuss “reasonably foreseeable environmental trends”—possibly including climate change. It would be a discussion of the environmental baseline, not the same thing as an analysis of the impacts of the action being considered.

The final rule sticks with the idea that any analysis of environmental effects connected to a proposed action should focus on those effects that are reasonably foreseeable and have a close causal relationship to the proposed action.

There have been recurrent arguments over the question of whether the climate impacts of any specific project can be measured. And if they cannot be measured, that leads to debates over the utility of spending time analyzing them.

The proposed rule would have excluded consideration of alternative actions beyond the control of the lead agency managing an environmental review. The final rule will allow discussion of “reasonable alternatives” even if they are outside the control of the lead agency.

Hopes for infrastructure projects

President Trump has made the cutting of red tape a priority of his administration, and he was expected to speak about the NEPA changes during a July 15 trip to Atlanta. Meanwhile the changes were welcomed by many in the industry.

The changes will help “move job-creating infrastructure projects off the drawing board and into development,” said Mike Sommers, president of the American Petroleum Institute.

Sommers mentioned modernized pipeline infrastructure, a sore point for oil and gas companies and electric and gas utilities, often frustrated by NEPA litigation. The current threat of a court-ordered shutdown of the Dakota Access crude oil pipeline hinges on a dispute over NEPA requirements.

The changes “will help promote predictability and transparency in the permitting process by clearly identifying which federal agencies need to review proposals, improving coordination between federal agencies and reducing unnecessary delays,” said the American Gas Association in a statement welcoming the rule.

Opposition and litigation

Some members of Congress and many environmental activists deplored the changes.

The final rule fundamentally undermines the original intent of the law, and could allow federal agencies to ignore the cumulative environmental impacts of decisions and actions, according to a statement from the office of Sen. Tom Carper (D-Del.), the top Democrat on the Senate Environment and Public Works Committee.

“The irony of this rollback is that it aims to speed up project delivery, but is only sure to sow chaos and confusion for the foreseeable future, inviting litigation that will ultimately slow project delivery across the country,” Carper said.

“At the same time, agencies across the government will have to go through an extensive public review and comment process before updating their existing NEPA practices and procedures,” Carper said.

It is questionable whether anyone can take CEQ rules to court. Because the CEQ instructs other agencies on how to implement NEPA, it may be that litigation only will arise when agencies issue new rules to conform with the CEQ guidelines, or even later, when the new rules are applied to specific projects.

Gina McCarthy, president of the Natural Resources Defense Council and an administrator of the Environmental Protection Agency under President Obama, released a statement denouncing the changes.

“Now more than ever our leaders should be helping people breathe easier, not handing out favors to oil drillers, pipeline developers and other polluters,” McCarthy said.