Proposed Revisions to the National Environmental Policy Act

This last month has been a study in maintaining magnanimity for me, as I have been reviewing the Council on Environmental Quality (CEQ) proposed revisions to the National Environmental Policy Act (NEPA).

NEPA has been called the “Magna Carta” of US environmental policy under which all other environmental regulations are governed. It is the document that states that any action that alters or compromises our public commons needs to be run by the public – so we have some voice in that which we all have a stake. It is the guiding document that brings all other environmental regulations to the table when some agency wants to permit actions that might compromise air and water quality, injure marine mammals or endangered species, or damage important natural and cultural sites.

The original NEPA was written in 1969, and enacted into law by Richard Nixon in 1970. It was written with pride and intention – as evidenced by its clear, unambiguous, declarative sentences:

“The National Environmental Policy Act (NEPA) is our basic national charter for protection of the environment. It establishes policy, sets goals, and provides means for carrying out the policy.”

It is no mystery that the current administration is at war with environmental regulations, so as you might imagine, the proposed revisions are a disaster; dulling public input, relieving agency violations, eliminating conflict clauses, and generally eviscerating what has been the foundation of US environmental protection – and in such an obsequious way to the oilmen.

Just for starters, the proposed revision for the statement of purpose above is:

The National Environmental Policy Act (NEPA) is a procedural statute intended to ensure Federal agencies consider the environmental impacts of their actions in the decision-making process. NEPA establishes the national environmental policy of the Federal Government to use all practicable means and measures to foster and promote the general welfare, create and maintain conditions under which man and nature can exist in
productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.

I used the term “blather” in my critique…

While the stated intent of the proposed revisions is to “modernize and clarify the regulations to facilitate more efficient, effective, and timely NEPA reviews by Federal agencies in connection with proposals for agency action.” But with all of the evaluative terms in their revision (“consider,” “use all practicable means and measures,” “productive harmony,” etc…) this revision alone would invite all manner of litigation.

There are a sorts of places where they open the door to confusion and ambiguity. For example, in ant regulatory document you need to rely on defined terms, so everyone is on the same page when there are questions on how the regulation is to be applied. In the proposed changes, the definition of the word “significant” has been eliminated.

This is a term that is used 127 times in a 61-page document, so one might assume that it is a “significant” term. But cast loose from a definition, “significance” is left to the determination of the issuing agency. In this Administration it means industry shills like DOI Secretary David Bernhardt and EPA Administrator Andrew Wheeler.

This is just a taste of the shenanigans CEQ is attempting to pull off. I won’t drill down into the technical details – mostly because they are tedious and frustrating. If you are interested in our comments, I found I needed a 22-page document to critique their 61-page travesty. Given that policy is not my strong suit, I’m sure I just scratched the surface. With a debt of gratitude to our policy-expert colleagues at NRDC, Earth Justice, Southern Environmental Law Center, and Oceana.