By Michael Brooks
President Trump’s Council on Environmental Quality last week proposed easing environmental regulations on infrastructure projects, calling for tighter deadlines and more formal agency cooperation in the federal government’s project reviews.
The Notice of Proposed Rulemaking, published Friday in the Federal Register, is intended to speed up the National Environmental Policy Act review process, which Trump called “outrageously slow and burdensome” and a “regulatory nightmare.”
“It takes many, many years to get something built,” Trump said Thursday at a White House press conference announcing the proposal, dubbed the “One Federal Rule.”
“The builders are not happy. Nobody is happy. It takes 20 years. It takes 30 years. It takes numbers that nobody would even believe.”
NEPA requires that federal agencies, including FERC, prepare environmental assessments (EAs) before taking any “major action,” including approving proposed infrastructure projects under their jurisdiction. If an agency finds that a project as proposed would produce significant impacts to the environment, it must then produce an environmental impact statement (EIS), which includes suggested changes that would lessen those impacts. FERC, for example, can call for alternative routes for proposed natural gas and oil pipelines.
CEQ’s proposed rules would narrow what classifies as a “major federal action” to “make clear that this term does not include non-federal projects with minimal federal funding or minimal federal involvement such that the agency cannot control the outcome on the project.”
The new rules would give agencies one year to complete EAs and two years for EISes.
“The Council on Environmental Quality has found that the average time for federal agencies to complete environmental impact statements is four and a half years,” Chairwoman Mary Neumayr said at the press conference. “Further, for highway projects, it takes over seven years on average, and many projects have taken a decade or more to complete the environmental review process. These delays deprive hardworking Americans of the benefits of modernized roads and bridges that allow them to more safely and quickly get to work and get home to their families.”
NEPA stipulates that a “lead agency” is responsible for conducting the environmental review process on projects subject to multiple agencies’ approval, but the law and CEQ’s regulations are unclear regarding what the responsibilities of the lead agency are. The proposal would clarify “that the lead agency is responsible for determining the purpose and need and alternatives in consultation with any cooperating agencies. … Cooperating agencies should give deference to the lead agency and identify any substantive concerns early in the process to ensure swift resolution.”
“Today’s proposal would empower lead agencies to make executive decisions when more than one agency is involved in the process and will streamline the permitting process without compromising environmental protections,” EPA Administrator Andrew Wheeler told reporters.
Cumulative Impacts
Disagreements over FERC’s responsibilities under NEPA have been a source of partisan tension between commissioners, which former Commissioner Cheryl LaFleur said affected their work on other dockets. (See FERC’s ‘Rifts’ Only Widened in 2019.) The disagreement stems from the Republican commissioners’ May 2018 decision to no longer include estimates of greenhouse gas emissions in the commission’s NEPA assessments.
CEQ’s proposal, if upheld, would negate this debate. “CEQ proposes to strike the definition of cumulative impacts and strike the terms ‘direct’ and ‘indirect’ in order to focus agency time and resources on considering whether an effect is caused by the proposed action rather than on categorizing the type of effect,” according to the proposal. “CEQ’s proposed revisions to simplify the definition are intended to focus agencies on consideration of effects that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action. In practice, substantial resources have been devoted to categorizing effects as direct, indirect and cumulative, which … are not terms referenced in the NEPA statute.”
The proposal does not give any specific guidance on how agencies should consider emissions in their reviews. That’s because, according to CEQ, it “does not consider it appropriate to address a single category of impacts in the regulations.”
Environmentalists have argued that “indirect effects” include a project’s effect on climate change, leading to courts ruling that projects’ GHG emissions, including carbon dioxide, be considered in agencies’ NEPA reviews. But the proposal says that “effects should not be considered significant if they are remote in time, geographically remote or the product of a lengthy causal chain. Effects do not include effects that the agency has no ability to prevent due to its limited statutory authority or would occur regardless of the proposed action.”
CEQ also noted that it issued a draft rule in June that would guide agencies in their consideration of emissions. It’s unclear, however, how this new rule would affect the June draft, which contains references to the “direct” and “indirect” impacts of emissions.
Comments are due March 10. CEQ will hold public hearings on the proposal at EPA Region 8 headquarters in Denver on Feb. 11 and at the Interior Department in D.C. on Feb. 25.
Reaction
Predictably, Democrats and environmentalists blasted the NEPA proposal, while Republicans and industry celebrated it.
“The lack of clarity in the existing NEPA regulations has led courts to fill the gaps, spurring costly litigation, and has led to unclear expectations, which has caused significant and unnecessary delays for infrastructure projects across the country,” said Don Santa, CEO of the Interstate Natural Gas Association of America. “The Council on Environmental Quality’s proposed rule is an important step in restoring the intent of NEPA by ensuring that federal agencies focus their attention on significant impacts to the environment that are relevant to their decision-making authorities.”
“For the past 50 years, NEPA has been an essential part of the public process, providing critical oversight that the federal government relies on to fully understand the potential implications of projects that can harm people’s health and the environment,” said Gina McCarthy, CEO of the Natural Resources Defense Council and former EPA administrator. “We will use every tool in our toolbox to stop this dangerous move and safeguard our children’s future.”
“While I am still reviewing the details of this proposal, antiquated federal regulations often stand in the way of critical infrastructure and other important projects that can create jobs, improve our standard of living and energy security, and yet still fully protect the environment,” said Sen. Lisa Murkowski (R-Alaska), chair of the Senate Energy and Natural Resources Committee. “The president and his advisers deserve credit for leading the charge to bring our 1970s-era permitting processes into the 21st century.”
“Much, though not all, of what is being proposed is positive,” the Bipartisan Policy Center said in a statement. “Efforts to increase the clarity of process, curtail uncertainty and diminish conflicts among agencies that contribute to delays are welcome improvements.
“The rule also contains some overreaches that are unnecessary and will extend the very litigation the rule is designed to diminish,” the BPC added. “Unfortunately, the administration’s constructive proposals are being colored by its irresponsible position on climate change.”
During the 2016 presidential election, Trump called climate change a hoax perpetrated by China. On Thursday, however, when asked by a reporter if he still thought that, he backed away.
“No, no, not at all. Nothing is a hoax. Nothing is a hoax about that,” the president said. “It’s a very serious subject. I want clean air. I want clear water. I want the cleanest air with the cleanest water.” He then noted a 2016 book that heralded him as an “environmental hero.”
