Last week, through the Council on Environmental Quality’s (CEQ) publication of a final rule at the close of phase one of a two-phase rulemaking process, the Biden administration began its efforts to reverse the prior administration’s reworking of the implementation of the National Environmental Policy Act (NEPA). Originally signed into law by President Richard Nixon in 1970, NEPA requires federal agencies to assess environmental, social, and economic impacts of any activities those agencies are seeking to undertake. The list of such actions is broad, but among them are permitting decisions, adopting federal land management actions, and constructing highways or other public facilities. The Act also requires agencies to disclose their NEPA evaluations, allowing for public review and comment.
The Trump administration’s NEPA revamp, the goal of which was to streamline and speed up the process for getting federal projects done, diminished community control over projects, limited the length and breadth of agency impact evaluations, redefined what a “major federal action” was in a way that excepted privately financed projects, resulting in reduced government oversight, and, perhaps most critically, limited the required analysis of a given project’s full climate impact by directing agencies to not consider as significant “indirect” environmental effects that are remote in time, geographically remote, or the product of a lengthy causal chain. In other words, a NEPA evaluation did not have to consider a project’s contribution to climate change, so long as any expected effects would occur in the future, would occur far from the project site, or were the product of a more proximate cause resulting from the project.
Under theBiden administration’s reversal of the revamp, however, federal regulators were directed to account for how federal actions might increase greenhouse gas emissions or endanger wildlife, and whether such actions would impose new burdens on overburdened communities that already suffer from exposure to pollution. More specifically, the Phase 1 Final Rule primarily: (i) resurrects NEPA’s original definitions of the terms “effects” and “impacts” in a way that directs agencies to evaluate a project’s “cumulative impact”, previously rolled back by the Trump administration; (ii) redefines the understanding of a project’s “purpose and need” by reverting to the old definition, which prioritized the local community and the public interest over the needs of the project applicant’s aims, the latter of which was prioritized under the 2020 changes; and (iii) allows federal agencies to apply requirements and procedures beyond the minimal CEQ procedures, something the 2020 reversal had disallowed.
The 2022 changes have inspired, unsurprisingly, opposite reactions from various stakeholders. For instance, agricultural groups, oil production & pipeline companies, and the US Chamber of Commerce expressed disappointment, claiming that the Biden administration’s reversion to the Nixon version of NEPA could result in the application process for federal projects to last longer than the projects themselves, as well as increased costs. On the other hand, environmental groups have expressed appreciation and optimism, but somewhat guardedly. Seeing the 2022 CEQ’s Final Rule as only a first step in undoing the 2020 rule change, these groups want NEPA further strengthened, and quickly, resulting in federal agencies proactively pinpointing concerns rather than waiting for the public comment period to reveal them.
As for whether the Department of Justice will seek to stay any pending litigation involving the Trump-era 2020 Rule changes, it has not indicated whether it will seek such a remedy. The next NEPA-related development we can expect from this administration, however, is the Phase 2 Final Rule, but likely not for another year and a half. Then, only time will tell whether we can expect a second (2024) Trump NEPA reversal of Biden’s 2022 reversal of Trump’s 2020 reversal.