Editor's Note: Comments are no longer being accepted on the new rules for NEPA. You can read the National Trust's comments which were submitted March 10.
In January, the National Environmental Policy Act (NEPA), the nation’s foremost environmental protection law, marked its 50th anniversary. Unfortunately, the celebration of NEPA’s half-century milestone anniversary has been overshadowed by a proposal to dramatically weaken its governing regulations. On January 10, 2020, the White House Council on Environmental Quality (CEQ) issued a Notice of Proposed Rulemaking requesting public comments on rule changes that, if implemented, would severely undermine NEPA’s effectiveness in protecting natural and historic resources. The National Trust has been tracking this effort since submitting comments in August of 2018 in response to CEQ’s initial request for public input on proposed changes to the NEPA regulations.
NEPA requires federal agencies to consider a proposed project’s impacts on the human environment, which is defined as the natural and built environment, including historic resources. Much like the National Historic Preservation Act, NEPA is a procedural law that does not mandate any particular outcome. Instead, its primary goal is to foster informed governmental decision making. To satisfy that objective, NEPA requires federal agencies to engage the public and to consider alternatives to proposed federal actions before making decisions that could impact natural and historic resources.
The heart of NEPA is the requirement that federal agencies review alternatives prior to making decisions. This requirement that agencies take a hard look at the impacts of proposed projects has been the key to many preservation successes. For example, NEPA was the primary basis for the successful lawsuit requiring the Army Corps of Engineers to reconsider its decision to permit the massive transmission line across the James River at Jamestown. NEPA has also been used by advocates to help protect historic post offices, such as the one in Stamford, Connecticut, and traditional cultural properties, such as Pågat in Guam. CEQ’s proposed regulatory overhaul would severely diminish NEPA’s ability to consider and protect historic places.
A few provisions in the proposed changes would be particularly problematic.
Cumulative and Indirect Impacts. Currently, NEPA requires federal agencies to consider the direct, indirect, and cumulative impacts of a project under review. The proposed changes would limit analysis to impacts that have “a reasonably close causal relationship to the proposed action,” with no analysis of impacts that may be “remote in time, geographically remote, or the product of a lengthy causal chain,” regardless of how reasonably foreseeable those impacts may be. This change would remove the obligation to consider cumulative impacts and may limit an agency’s review of indirect impacts as well, like traffic, noise, or tourism impacts for projects near a historic district. The removal of cumulative impacts review would also remove the obligation for federal agencies to consider how a project, like building a pipeline, or permitting new oil and gas development on public lands, could contribute to climate change impacts that harm cultural resources.
Exemptions When the Federal Role is Small. The proposed rule changes would also make it easier for federal agencies to avoid NEPA compliance altogether when federal involvement can be categorized as minimal. This change could limit review in situations where a federal agency has a permitting role for a project that would be developed primarily on private or state-owned land. For instance, the Army Corps of Engineers often issues permits for projects that cross wetlands or streams, which may be the only trigger for NEPA review, despite the permit being a necessary part of a much larger development project that may result in loss of historic properties
Limitations on Alternatives. Other changes included in the proposed rule would limit federal agencies to reviewing only alternatives that would satisfy the goals of the entity that is proposing the project and that are “technically and economically feasible.” Non-federal applicants with financial stakes in a project would also be given greater control over preparation of the NEPA environmental review documents used by federal agencies to guide decision making. For example, under the new rules, a company proposing new linear infrastructure could more easily argue that their preferred route through an area rich in historic sites and cultural resources is the only economically feasible alternative. The proposed regulatory changes would put a thumb on the scale in favor of approving projects in the form most advantageous to the permit applicant, rather than taking a more balanced approach that considers historic and conservation values equally with economic development goals.
Disregard for Non-Technical Public Comments. The proposed rule changes would also impose new barriers to public participation in NEPA reviews. New language would allow federal agencies to dismiss public comments for lack of specificity if they are not carefully worded to meet regulatory standards. Currently, agencies consider general comments that raise concerns about a project, whether or not those comments are phrased in technical language or specifically reference scientific data and methodological flaws. Under the proposed rules, this open approach to considering public comments would change. This could result in federal agencies dismissing concerns raised by local citizens about project impacts that do not include technical information.
Barriers to Enforcement. It would also become more difficult to bring legal challenges under NEPA if the proposed rules move forward. CEQ has proposed requiring the public to submit comments at multiple steps in the NEPA process or they may be precluded from filing a lawsuit alleging noncompliance with NEPA. Litigants may also potentially be required to post a monetary bond before litigation can proceed. Since lawsuits brought by citizens and public interest groups are the primary mechanism for NEPA enforcement, these changes would make enforcement actions more complex, more expensive, and less likely to succeed.
Lack of Public Comment on the Proposed Regulations. In addition to major concerns regarding the substance of the proposed rule changes, CEQ’s process for involving the public in the rulemaking has also been inadequate. Only two in-person meetings have been scheduled to inform the public about the complexities of the rulemaking. The tickets to attend and speak at those hearings were all gone within a few minutes of when they became available. The comment period has also been limited to only sixty days, even though the rulemaking would dramatically rewrite a complex set of regulations that has been in place for decades.
Lack of Tribal Consultation. The proposed rule changes were also developed without tribal consultation. Instead, CEQ simply issued a letter to tribal leaders inviting them to participate in the two public meetings. Federal law requires agencies to engage in government-to-government consultation with tribes when considering regulatory changes that would affect tribal nations. Given the magnitude of the proposed changes, and the importance of NEPA in protecting tribal cultural resources, this rulemaking clearly requires formal tribal consultation.
Implications for Section 106 of the National Historic Preservation Act. Projects that require review under Section 106 of the National Historic Preservation Act also often trigger NEPA review and federal agencies may use the NEPA review process to satisfy their Section 106 responsibilities. However, the Section 106 regulations require consideration of cumulative impacts, a requirement that CEQ has proposed to remove under NEPA. This type of inconsistency is likely to cause confusion and could potentially create gaps in the review of impacts to cultural resources.
While this post only highlights some of the most troublesome aspects of the proposed rule changes, it is clear the proposal would diminish the federal government’s responsibility to consider the impacts of its actions on natural and historic resources. Please join the National Trust in opposing these harmful changes to one of the nation’s bedrock environmental and preservation laws by submitting a comment by CEQ’s deadline of March 10, 2020.