White House takes step to roll back NEPA revisions

Oct. 18, 2021

The White House Council on Environmental Quality (CEQ) has proposed its first set of changes to the ways federal agencies regulate an enormous range of activities, including oil and gas development, under the National Environmental Policy Act (NEPA).

The proposed changes, unveiled Oct. 6, would roll back three revisions that the CEQ made in 2020 under President Trump. More rollbacks are promised.

“Over the coming months, CEQ will also work toward proposing a set of broader ‘Phase 2’ changes to the NEPA regulations,” CEQ said.

The proposed changes under President Biden aim to restore longstanding interpretations of the law and to assure agencies of a wider range of regulatory options and analytical scope.

The 2020 revisions aimed to reduce litigation and streamline NEPA project permitting. The CEQ that year reported that environmental impact statements (EISs) have been taking an average of four and a half years to complete. They often run to more than 1,000 pages and provide a great many opportunities for litigation over details, such as the question of how extensively any alternatives were analyzed.

Concerned about rollbacks

The efficiency promoted by the 2020 revisions was valuable not only for conventional energy and other projects but for the big infrastructure hopes of the Biden administration, said Chad Whiteman, vice-president of environmental and regulatory affairs at the US Chamber of Commerce.

Whiteman suggested the proposed rollbacks point the way to less efficiency in NEPA regulations for big projects—the projects requiring EISs—and that regulatory burden will weigh on the administration’s hopes for more wind and solar energy, more electric transmission lines, and more mass transit.

“I think they’ve been pretty clear that they want to do a lot more analysis,” Whiteman said.

That notably will include the potential climate impacts of greenhouse gases and consideration of “environmental justice.” The Chamber of Commerce is concerned that addressing climate change project-by-project under NEPA will just slow down efforts to develop new infrastructure, Whiteman said.

Reasonably foreseeable

The 1978 CEQ guidance called for agencies analyzing a proposed project to consider environmental effects that are direct, indirect, and cumulative. The 2020 CEQ guidance decided there is no need for three separate buckets of analysis when those effects can be covered in one all-encompassing analysis of “reasonably foreseeable” effects that have a “reasonably close causal relationship” to the proposed project.

The new CEQ proposal would restore the three categories and explained that analyses under the 2020 guidance “may not adequately consider long-term or geographically remote impacts, including greenhouse gas emissions”—though the CEQ in 2020 insisted greenhouse gas emissions would be considered.

The Biden CEQ emphasizes, as the Trump CEQ did, that cumulative impacts must be reasonably foreseeable, not speculative. CEQ is stuck with that requirement because of case law, said Ann Navaro, a partner at the law firm Bracewell LLP.

Partly because of the case law, she does not expect the Phase 1 rollbacks will increase or decrease litigation. “I think they’re very narrow changes,” said Navaro, an environmental attorney who has worked for the Interior Department, the US Army Corps of Engineers, and the Justice Department.

But the consequences of the broader Phase 2 rollbacks, yet to be unveiled, remain to be seen, she said.

Focus for efficiency

The proposed rollbacks also would eliminate the 2020 decision to sharpen the focus of “purpose and need” statements into concise brief statements about the proposed project, leaving consideration of alternatives to a later stage of the regulatory analysis.

Whether that rollback, giving more prominence to consideration of alternatives, makes any discernable difference may depend on CEQ’s policy direction as well as the policy directions of the regulatory agencies, Navaro said.

A third proposed rollback would allow agencies to exceed CEQ guidance in the stringency of the agencies’ regulatory actions. That rollback “opens it up to analyzing all impacts without regard to significance,” Whiteman said.

The 2020 revisions were finalized in September of that year, and agencies were given 1 year to send their conforming regulatory changes to CEQ. The Biden administration pushed the deadline for the conforming changes into 2023.

That means the 2020 revisions, still on the books, have not yet gone into effect, and there is no real-world track record for those changes—good, bad, or indifferent.

CEQ will hold online public meetings for the proposed rulemaking Oct. 19 and Oct. 21, with registration for the meetings available via www.nepa.gov. Public comments on the proposed rule must be received by Nov. 22.