President Donald J. Trump on January 9 rolled out new rules to implement the National Environmental Policy Act of 1970 (NEPA) at a White House media event. The proposed rules were published in the Federal Register the next day. The White House Council on Environmental Quality (which is in charge of NEPA) announced a 60-day public comment period and two public hearings—in Denver, Colorado on February 11 and in Washington, D.C., on February 25.
In his remarks, the President noted that, “It took four years to build the Golden Gate Bridge, five years to build the Hoover Dam, and less than one year—can you believe that?—to build the Empire State Building. Yet today, it can take more than 10 years just to get a permit to build a simple road—just a very simple road. And usually, you’re not even able to get the permit. It’s unusual when you get it. It’s big government at its absolute worst, and other countries look at us and they can’t believe it.”
NEPA was enacted in 1970, and the current implementing rules were adopted in 1978. Since then, NEPA has become the preferred method for delaying major infrastructure and natural resource projects to death, both in the time it takes to prepare an Environmental Impact Statement (EIS) and the time it takes to dispose of multiple lawsuits.
The new rules are intended to speed up NEPA’s process for preparing and approving an EIS. Under the proposed rule, it should be easier for agencies to grant categorical exclusions for projects that lack significant federal involvement and would therefore not have to obtain a NEPA permit.
For projects that require an EIS, the new rules set a two-year limit to complete the EIS and a 300-page limit for the document. For projects that require a less rigorous Environmental Assessment, the page limit is 75 and time limit is one year. However, the agency official in charge could still waive all these limits.
Other key provisions intended to speed up the process include: strengthening the authority of the lead agency when multiple agencies are involved (as is usually the case); requiring that public comments be solicited earlier in the process; and, perhaps most importantly, reducing the number of reasonable alternatives that must be considered to those that are economically and technically feasible.
The current regulations flesh out the law by requiring that an EIS consider the “direct, indirect, and cumulative” environmental impacts of a project. The new rule strikes these specific references and thereby reverts simply to the consideration of environmental impacts.
Further, “CEQ proposes a change in position to state that analysis of cumulative effects, as defined in CEQ’s current regulations, is not required under NEPA.” This sentence has attracted the most attention from the mainstream media and environmental pressure groups because of its practical effect—an EIS will not be required to include consideration of the potential climate impacts (which are necessarily cumulative) of a project. However, it should be noted that the new language does not prohibit the consideration of cumulative impacts.
The proposed rules are fairly long and quite complicated. It will take a while to unpack and analyze the possible implications and consequences. One important aspect that will require prolonged attention is whether the new rules will reduce the opportunities for lengthy litigation.