By Deborah Quick

The Bident administration has begun the process of reversing various Trump administration amendments to regulations governing agencies’ implementation the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq., [NEPA]). Likely most consequential are the reversal of amendments that eliminated those well-litigated categories of “direct,” “indirect” and “cumulative” effects of a project that should be analyzed, and replaced them with direction that agencies should concentrate on “reasonably foreseeable impacts.” [86 Fed. Reg. 55757 (Oct. 7, 2021).]

Background

The Council for Environmental Quality (CEQ) on October 7, 2021, published a notice of proposed rulemaking that is the first of an intended two-phase process of implementing January 20, 2020 Executive Order (EO) 13990 establishing policies for the Biden administration to

listen to the science; improve public health and protect our environment; ensure access to clean air and water; limit exposure to dangerous chemicals and pesticides; hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; reduce greenhouse gas emissions; bolster resilience to the impacts of climate change; restore and expand our national treasures and monuments; and prioritize both environmental justice and the creation of well-paying union jobs necessary to deliver these goals.

EO 13990 took specific aim at various actions by the Trump administration regarding CEQ regulations implementing the National Environmental Policy Act of 1969 (42 U.S.C. 4321), revoking Trump-signed EO 13807, entitled Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects, and directing agencies:

. . .to review existing regulations issued between January 20, 2017, and January 20, 2021, for consistency with the policy articulated in the E.O. and to take appropriate action.

Trump’s EO 13807 had culminated in a rulemaking process amending CEQA regulations first adopted in 1978, with the final rulemaking going into effect on July 16, 2020 (the 2020 amendments). Five separate lawsuits were subsequently filed, with stays of the 2020 amendments having been imposed in four of them, while the dismissal of the fifth is subject of a pending appeal.

On January 27, 2020, Biden signed EO 14008, which establishes a government-wide approach to the climate crisis by reducing greenhouse gas emissions and an administration policy to increase climate resilience, transition to a clean energy economy, address environmental justice and invest in disadvantaged communities, and spur well-paying union jobs and economic growth.

The Proposed Rules

CEQ’s proposed rulemaking proposes to restore the definitions of ‘‘direct’’ and ‘‘indirect’’ effects, and ‘‘cumulative impacts’’ from the 1978 NEPA Regulations, 40 CFR 1508.7 and 1508.8 (2019), by incorporating them into the definition of ‘‘effects’’ or ‘‘impacts,’’ such that each reference to these terms throughout 40 CFR parts 1500 through 1508 would include direct, indirect, and cumulative effects.

These revisions would eliminate 2020 amendments that, per CEQ:

. . .create[d] confusion and could be read to improperly narrow the scope of environmental effects relevant to NEPA analysis, contrary to NEPA’s purpose.

The 2020 amendments directed agencies to concentrate on “reasonably foreseeable impacts,” rather than categorizing them as “direct,” “indirect” or “cumulative.” CEQ’s current thinking is that the 2020 amendments could improperly limit the timescale and scope of effects analyzed by agencies.

The proposed amendment to 40 C.F.R. 1502.13 addresses an agency’s duty to “set[] forth the rational for the agency’s proposed action” the purpose and effect section” of an Environmental Impact Statement (EIS). The 1978 version of the regulation required that an agency “briefly state the underlying purpose and need to which the agency is responding in proposing the alternatives, including the proposed action.” The 2020 amendments:

. . .add[ed] language that requires agencies to base the purpose and need on the goals of an applicant and the agency’s authority when the agency’s statutory duty is to review an application for authorization.

The proposed rule would revert to the 1978 language. CEQ reasoned that the 2020 amendments “could be construed to require agencies to prioritize the applicant’s goals over other relevant factors, including the public interest.” Rather than restrict the purpose and need for agency actions to applicants’ goals, NEPA, per CEQ’s reading, endorses agencies considering a range of factors including “regulatory requirements, desired conditions on the landscape or other environmental outcomes, and local economic needs, as well as an applicant’s goals.” CEQ also proposes a conforming change to 40 C.F.R. 1508.1(z), to define “reasonable alternatives” to the project that is the subject of an EIS as:

. . .a reasonable range of alternatives that are technically and economically feasible, meet the purpose and need for the proposed action, and, where applicable, meet the goals of the applicant.

CEQ’s next draft amendment seeks to re-establish the longstanding understanding, upended by the 2020 amendments, that agencies could develop NEPA procedures of their own to augment the CEQ regulations, so long as those procedures met or exceeded the degree of environmental review required by the CEQ regulations. The proposed rulemaking would remove language from 40 C.F.R 1507.3(a) and (b) that, collectively, “make the CEQ regulations a ceiling for agency NEPA procedures.” Per CEQ “would allow agencies to fully pursue NEPA’s aims by allowing them to establish procedures specific to their missions and authorities that may provide for additional environmental review and public participation,” while CEQ would continue its review agencies’ proposed NEPA regulations “to ensure that they are consistent with, but not necessarily identical to, CEQ’s regulations.”

Conclusion and Implications

That both administrations claim that their amendments (the 2020 amendments and those currently proposed by CEQ) are consistent with NEPA and the substantial body of caselaw seeking to interpret and apply the terms “direct,” “indirect” or “cumulative” should give some idea of the potential for a spirited comment period and, if the proposed amendments to 40 C.F.R. 1508.7 and 1508.8 become final, renewed litigation over the meaning and proper application of these terms. For more information on the CEQ’s proposed rule for implementation of NEPA, October 7, 2021, see:https://www.federalregister.gov/documents/2021/10/07/2021-21867/national-environmental-policy-act-implementing-regulations-revisions