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Eleven Free Market Groups Submit Joint Comments on Proposed Updated NEPA Regulations

The Competitive Enterprise Institute (CEI) and 10 other free market organizations yesterday submitted comments supporting the Council on Environmental Quality’s (CEQ) Proposed Updated regulations for implementing the National Environmental Policy Act (NEPA).

NEPA, the nation’s foundational environmental statute enacted in 1970, requires federal agencies to take a hard look at the environmental consequences of major proposed actions before making final decisions. For example, agencies conduct NEPA environmental reviews when deliberating on whether to grant permits to build pipelines, bridges, highways, railways, airports, and other critical infrastructure. CEQ’s proposed regulations aim to reduce the delays, costs, and litigation risks that routinely beset NEPA reviews and often thwart worthwhile projects.

The joint free market groups’ comment letter has two main parts. Part I responds to CEQ’s request for comment on how to revise its June 2019 Draft Guidance on NEPA consideration of greenhouse gas (GHG) emissions to ensure consistency with the updated procedural regulations, and whether or how the regulations should codify or address aspects of the GHG guidance.

Our basic argument in Part I may be summarized as follows. Numerous statements in both the Draft Guidance and Proposed Update imply that NEPA scrutiny of project related GHG emissions is not required. The final Guidance should spell out those implications, which add up to a clear rejection of NEPA’s use as a climate policy framework. To give that assessment legal weight, the final guidance should quote or reference the supporting language in the final updated regulations.

Part II examines the proposed update in light of the Trump administration’s One Federal Decision goal and the Obama-era EPA’s vetoes of Clean Water Act permits independently of the NEPA process. In 2014, the EPA blocked the proposed Pebble gold mine in Alaska before the NEPA process had even begun. In 2011, the EPA vetoed the Spruce coal mine in West Virginia after the NEPA process had been completed and the project approved.

The argument of Part II may be summarized as follows. The EPA’s prospective and retroactive vetoes undercut NEPA and precluded the very possibility of achieving one federal decision with coordinated and concurrent deadlines. Allowing either the preemptive or retroactive veto to stand would create a highly dangerous precedent, allowing the EPA to bypass NEPA or override NEPA-informed agency actions at any time. CEQ’s final Updated regulations should expressly state that EPA may commence a section 404(c) veto only as part of the NEPA process, not before or after it.

The 10 groups co-signing the comment letter with CEI are the Caesar Rodney Institute, Center for the American Experiment, Center for the American Future, Citizens Against Government Waste, Institute for Energy Research, Heartland Institute, John Locke Foundation, Rio Grande Foundation, Roughrider Policy Center, and 60 Plus.

Read the full comment letter here.