07 • 21 • 2020

Nation’s Premier Environmental Law Weakened

By Staley Prom

Last week, the Trump Administration substantially weakened one of the nation’s most important environmental laws. On July 15, pursuant to an Executive Order, the Council on Environmental Quality (CEQ) finalized revised regulations for implementing the National Environmental Policy Act (NEPA).  The new regulations significantly curtail the law’s environmental review process and ability to protect our nation’s environmental resources like clean water and healthy beaches, from projects like oil and gas pipelines that require federal permits. CEQ oversees Federal agency implementation of NEPA, principally through its NEPA regulations.

NEPA is one of the country’s premiere environmental laws, which requires, among other things, that for major Federal actions that will significantly affect the environment, that Federal agencies undertake a comprehensive analysis and prepare a detailed “Environmental Impact Statement” (EIS) including consideration of the impacts and unavoidable environmental consequences from such actions; alternatives; and any irreversible commitments of resources. A primary purpose of NEPA is to force the government to take a “hard look” at its proposed actions, and to provide a full and fair discussion of the resulting impacts in order to inform decision makers and the public of the reasonable alternatives that could avoid or minimize significant adverse impacts to the environment. 

While the CEQ has adopted numerous changes, three notable revisions are discussed below. First, the rules include a new presumptive deadline for agencies to complete Environmental Assessments (EAs) within one year, and EISs within two years. EAs are prepared before EISs in order to determine whether or not a federal action has the potential to cause significant environmental effects, and if so, an EIS is required. For comparison, of 1,276 EISs completed between 2010 through 2018, the median EIS completion time was 3.5 years with only around 20% completed in 2 years or less. Therefore, the environmental review timeframe will be significantly reduced in order to speed up permitting for things like coastal power plants and oil and gas pipelines, at the expense of a full and fair comprehensive review required by NEPA. 

Additionally, the rule eliminates the requirement for Federal agencies to consider a project’s indirect effects, or “cumulative impacts,” instead requiring analysis of “reasonably foreseeable” impacts only. This could free Federal agencies from considering things like all of a project’s greenhouse gas emissions, or ultimate impacts on climate change. 

Third, CEQ’s rule provides that “major Federal actions” which are subject to NEPA’s environmental review process, do not include “non-Federal projects with minimal Federal funding or minimal Federal involvement where the agency does not exercise sufficient control and responsibility over the outcome of the project.” Further, CEQ allows agencies to decide for themselves which kinds of projects aren’t “major” and subject to NEPA. This means that an agency could decide for itself that its role in permitting a project isn’t major, and therefore preclude any public notice or review of a project. 

Surfrider Foundation strongly opposes these revisions, which constrict the scope of the law and the timeframes for carrying out its mandates. The changes are completely at odds with both the letter and spirit of NEPA. The legislature adopted NEPA in 1969 in order to “prevent or eliminate damage to the environment”, and “enrich the understanding of the ecological systems and natural resources important to the Nation.” In furtherance of this policy, NEPA requires the Federal government to use all practicable means to fulfill its responsibilities as trustee of the environment for future generations, and assure for all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings. CEQ’s revisions do not assure for all Americans and our future generations a safe and healthful environment, and cannot stand.