Decades of rules and regulations on how to implement the National Environmental Policy Act are set to be thrown out by the Trump administration in the coming months in an effort to lift burdensome permitting hurdles.
For over 50 years, NEPA has required federal agencies to study the environmental effects of infrastructure projects, including transmission lines, highways, pipelines, and more — all of which require federal permits.
While supporters of the law have said it is key to avoiding the endangerment of public lands and wildlife as well as curbing climate change, critics have accused NEPA of acting as red tape, slowing domestic infrastructure development through excessive litigation.
Rescinding regulations
On his first day in office, President Donald Trump took the first step toward overhauling this environmental permitting process in his “Unleashing American Energy” executive order. In the order, the president asked the Council on Environmental Quality, which oversees NEPA, to rescind existing regulations on implementing the law and to provide new, non-binding guidance for agencies.
The executive order also revoked a 1977 order signed by then-President Jimmy Carter that had authorized CEQ to issue regulations on implementing NEPA.
That authorization came into question late last year when the U.S. Court of Appeals for the District of Columbia Circuit ruled that the CEQ lacked the authority to issue binding regulations under the NEPA. The U.S. District Court for the District of North Dakota came to a similar ruling in early February.
As a result of the executive order, CEQ released the text of an interim final rule titled “Removal of the National Environmental Policy Act Implementing Regulations,” undoing all past regulations issued by CEQ on how to implement the bedrock environmental law that has been in effect since 1970. Simultaneously, CEQ sent a memo to all federal agencies with recommendations on implementing NEPA and primarily recommended continued use of existing rules until further guidance is issued.
The decision to remove all past regulations issued by CEQ on implementing the law is an apparent effort by the Trump administration to simplify the permitting process for infrastructure projects nationwide, including developments for clean energy.
Possible effects
CEQ first submitted the interim final rule last weekend but didn’t release the advance text for several days, sparking concerns that it could create confusion among agencies about how to implement NEPA and, thus, create additional hurdles for permit approvals.
“If the goal is to speed environmental permitting, I’m not sure this is going to do it in the short term or even medium term,” Neal McAliley, a Carlton Fields attorney specializing in environmental law, told the Washington Examiner. “And in fact, I think it could create enough uncertainty that it will actually slow down environmental permitting and litigation risk for some projects.”
He pointed out that the new CEQ guidance calls on federal agencies to revise their existing regulations on implementing NEPA within one year.
McAliley said that as revised rules are expected to undergo notice and comment periods, that could result in further delays in the permitting process through more legal challenges.
While this could cause concern for those adamant about simplifying the permitting process, some disruption or delay is not completely out of the norm for sweeping changes such as this.
“There’s a bipartisan recognition that things have to change. Now, any kind of change obviously produces at least some minimum amount of disruption,” James Coleman, a professor at the University of Minnesota Law with a focus on energy law, told the Washington Examiner.
“I don’t think it’s possible to do this without any disruption,” he continued. “With that said, you know, the hope is that … these changes ultimately result in a system that you know operates much more efficiently.”
The rule itself
It is important to note that the CEQ interim rule is not yet in effect, meaning that all existing regulations on implementing NEPA still stand. The advance text of the rule notes that it will not go into effect until 45 days after it is published to the federal register, which could take several weeks.
However, that doesn’t mean work hasn’t begun. In its nonbinding recommendations issued to federal agencies this week, CEQ requested the departments revise their own NEPA implementation procedures no later than 12 months after receiving this week’s memo.
Under the recommended revisions, CEQ has suggested that agencies ensure their NEPA implementation regulations comply with congressional deadlines, only consider a “reasonable range” of alternatives when developing required environmental impact statements, and adjust what reasonably foreseeable effects of the proposed project need to be analyzed. CEQ has also noted that NEPA documents should no longer include environmental justice analyses.
While all past regulations are poised to be rescinded, agencies will still be required to conduct environmental reviews for projects under NEPA. CEQ has recommended agencies continue to rely on past regulations to complete ongoing NEPA reviews. The council plans to release guidance and assistance through regularly scheduled monthly meetings.
Coleman said that this interim final rule will likely make it easier for the courts to interpret permitting approvals and legal challenges for various projects, including new energy projects such as hydrogen pipelines. He insisted that it does not guarantee that projects that would have likely seen a denial from the court previously would now see a swift win.
“It gives an opportunity to courts moving forward, that if they want to, rather than follow those old decisions that turned on the regulations, they can instead, basically go back to the statute and give NEPA a narrower interpretation that would make it easier for projects to be built in a timely fashion,” Coleman said.
Outside of this week’s memo, CEQ has yet to issue additional guidance on implementing NEPA in light of this rule, allowing agencies to rely on existing policies.
As a result, some legal experts believe the federal agencies will look to retain the status quo until they are told otherwise.
“If I’m an author of an order granting a certificate, I’m going to do all the due diligence that I’ve done before to make sure the record is fulsome,” former Federal Energy Regulatory Commissioner and energy attorney Marc Spitzer told the Washington Examiner. “And when the Court of Appeals takes a look at this three years after the order is issued, and has oral argument, it concludes that the [agency] followed NEPA.”
NEPA still stands
As federal agencies begin to revise their regulations, one thing remains clear: CEQ’s interim final rule does not do away with NEPA. Spitzer told the Washington Examiner that CEQ could issue any rule it wants regarding the environmental law, but it still wouldn’t change the decades-old statute.
“To me, the big enchilada is the statute itself,” he said. “CEQ can do whatever, can stand on its head … but it takes the House, the Senate, and the president’s signature to change that statute.”
Philip Karmel, an attorney with Bryan Cave Leighton Paisner with extensive experience handling matters under NEPA and similar statutes, agreed, saying, “NEPA remains federal law.”
CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER
He described the rescinding of the regulations as a simple “procedural change” since it now puts the agencies at the forefront of NEPA implementation.
“I don’t think the basic rules for NEPA procedures will be changed materially by repealing the CEQ regulations,” Karmel said.