Trump administration completes overhaul of NEPA regs
The Trump administration has shaken the bedrock of the nation’s environmental laws to the delight of development advocates.
The White House Council on Environmental Quality on July 15 issued its final regulations to overhaul implementation of the National Environmental Policy Act, or NEPA, signed into law 50 years ago by President Richard Nixon.
Administration officials contend the regulatory reforms will streamline what has become a clunky and arcane environmental review process for development projects and federal land-use decisions.
It officially marks the first major change to NEPA regulations since the council first approved them in 1978.
Gov. Mike Dunleavy lauded the changes during a July 16 press conference at the White House, saying the former NEPA rules had “strangled the American dream” for decades.
“These long-awaited reforms are a ray of hope for those who have suffered the impacts of federal overreach in my home state,” Dunleavy said. “Lifting the regulatory burden will spur responsible natural resource development in Alaska, creating jobs and economic opportunity while still protecting the environment.”
Sen. Lisa Murkowski said in a statement from her office that easing the regulatory burden for developers will be particularly important as the country attempts to recover economically from the coronavirus pandemic.
“The president and his advisers deserve credit for leading the charge to update and modernize federal NEPA regulations to responsibly streamline these processes so that critical infrastructure and other important projects can be built in a timely manner,” Murkowski said.
She has also been critical of the U.S. Army Corps of Engineers’ draft review of the Pebble mine project, which mine opponents say has been rushed to appease the company.
Conservation advocates insist the administration is narrowing the time and scope of NEPA reviews — particularly the detailed environmental impact statements required for large projects or federal actions — to limit public involvement and understanding of the full impacts a proposed development could have.
According to the White House council, the average length of an EIS is more than 600 pages and EIS reviews average 4.5 years to complete.
NEPA was so transformative when it was enacted that it is often referred to as the “Magna Carta” of environmental law. In conjunction with the Clean Water and Clean Air acts, it forms the national basis for environmental protection, pollution control and land conservation.
As such, the CEQ’s new NEPA regulations could be a lasting accomplishment for the Trump administration.
The CEQ is hardening current guidelines for the length of an EIS. Prior NEPA regulations recommend the text of a final EIS be less than 150 pages. An EIS of “unusual scope or complexity” should be limited to 300 pages, according to the regulations; it’s 75 pages for an environmental assessment.
The new regulations make those recommendations mandatory in most cases.
The new language also defines reasonable alternatives, which are a required part of an EIS, as alternatives that are “technically and economically reasonable” to be in line with longstanding Supreme Court decisions, CEQ officials told the Journal.
Many of the high level reforms to the parameters of an EIS were in part derived from Sen. Dan Sullivan’s Red Tape and Rebuild America Now bills, according to the senator. He said in a March interview with the Journal that one of the first conversations he had with President Trump was about the need for NEPA reform.
The new regulations also limit the scope of climate impacts that a project could have to those that are direct or nearby.
Other changes narrow the focus of an EIS to address the direct impacts of a project as NEPA was intended, reform advocates argue, while also aligning the regulations with settled case law.
Skeptics of the new rules note that the analysis of “cumulative effects” is no longer required, which will result in the public getting only a limited view of what a development project will truly mean.
“Any action that diminishes NEPA strips us of our voice in these public processes, and in doing so diminishes democracy itself,” Southeast Alaska Conservation Coalition Executive Director Meredith Trainor said in a statement responding to the CEQ announcement.
However, CEQ attorneys also stress that while the regulations are intended to expedite reviews of most relatively small or simple developments, they are specifically written to ensure senior agency officials can formally deem a project particularly complex or of public significance to bypass the new page and time limitations.
Federal agencies have largely ignored other, similar directives from the White House to limit the length and time of environmental reviews, so it’s unclear how closely the regulations will be adhered to. What is clear is they will be thoroughly vetted in court.
Elwood Brehmer can be reached at [email protected].