NEPA overhaul won’t be ‘overnight game changer’

By Niina H. Farah, Jennifer Hijazi | 01/10/2020 07:18 AM EST

The Trump administration heralded planned changes to rules surrounding the National Environmental Policy Act as an end to drawn-out legal brawls challenging high-profile energy and infrastructure projects. But experts say that may not happen.

President Trump announces changes to the National Environmental Policy Act at the White House yesterday.

President Trump announces changes to the National Environmental Policy Act at the White House yesterday. Polaris/Newscom

The Trump administration heralded its latest environmental rollback as an end to drawn-out legal brawls challenging high-profile energy and infrastructure projects.

But experts say the legal implications of planned changes to rules surrounding the National Environmental Policy Act would be much less dramatic. Judges have used the statute to strike down a State Department permit for the Keystone XL pipeline to cross the U.S.-Canadian border and Interior Department approvals to develop oil, gas and coal on public lands in the West.

The White House Council on Environmental Quality’s draft changes to NEPA’s implementing rules may do little to ease courtroom wrangling over the federal government’s compliance with the law — especially when the new rules are held up against a body of long-standing precedent, legal experts say.


"NEPA is set up in a way to ensure we have informed decisionmaking, so if you are proposing changes that tell an agency to look at fewer and fewer things, you really are undercutting the goal of the act," said Nathaniel Shoaff, staff attorney at the Sierra Club’s Environmental Law Program.

"You don’t get better decisions by looking at less information."

NEPA requires federal agencies to review the environmental impacts of major actions like building large-scale energy and infrastructure projects before those efforts get off the ground.

Trump’s CEQ yesterday proposed changes to reduce paperwork and speed up approvals for such projects (Greenwire, Jan. 9).

The draft regulations would set tighter time limits for putting together NEPA analyses and would remove language about assessing cumulative or indirect impacts of agency actions.

Critics have pointed to the changes as an attempt to reduce analysis of the effects of climate change. The Trump administration, however, has billed the change as an effort to clarify the regulatory text.

If finalized, Trump’s rule changes would be the first full overhaul to the regulations since their completion in 1978.

Conservative interests and industry supporters have hailed the draft changes as a long-overdue move toward quicker permitting processes for infrastructure and energy projects.

"[T]he larger point is that the average of 4.5 years to review these projects is untenable and has to change," West Virginia Attorney General Patrick Morrisey (R) told E&E News in an emailed statement.

"What’s more, for a state like West Virginia that has so many infrastructure needs, shortening the wait time is critical, and we have great confidence that federal agencies can still comprehensively review projects within two years," he continued.

Byron R. Brown, senior counsel at Crowell & Moring LLP’s Washington, D.C., office, said the new rules are all about ensuring that projects are "adequately evaluated but not unnecessarily delayed."

Brown — who left as EPA deputy chief of staff for a policy position just over a year ago — said terms like cumulative, direct and indirect impacts cast the required net out too wide, resulting in confusion over how far down the chain of causation agencies needed to evaluate.

"In some ways, [the proposal] is stepping back from what common practice has been for a number of years, but it does seem to be with the goal of avoiding unnecessary litigation by providing clear definitions and procedures that are more closely aligned to what Congress intended,” he said.

NEPA in the courts

The Trump administration’s efforts to change NEPA follow a host of court rulings that have called on federal agencies to beef up their environmental analysis of climate and other impacts.

Trump officials may counter this body of case law by arguing that agencies are now working under a new NEPA regime, said James Coleman, an associate law professor at Southern Methodist University.

But courts would still turn to the statute itself, "regardless of what the regulations say," he said.

CEQ has also proposed to change the way courts assess penalties to federal agencies for NEPA violations.

The agency wrote that "harm from the failure to comply with NEPA can be remedied by compliance with NEPA’s procedural requirements, and that CEQ’s regulations do not create a cause of action for violation of NEPA."

CEQ also stated that a NEPA violation "does not warrant injunctive relief and does not satisfy the irreparable harm requirement."

Coleman said the agency may be seeking to "get the lower courts to act more consistently with Supreme Court precedent," which has tended to favor the federal government.

One example is the 1989 Supreme Court case Robertson v. Methow Valley Citizens, in which the justices unanimously held that NEPA does not require an agency to conduct a "worst case analysis" of an action.

"[T]he proposed regulations would codify longstanding case law in some instances, and, in other instances, clarify the meaning of the regulations where there is a lack of uniformity in judicial interpretation of NEPA and the CEQ regulations," the agency wrote.

But it will be up to the courts, not CEQ, to say what happens to agencies in violation of the environmental law, said Jayni Hein, natural resources director at the New York University School of Law’s Institute for Policy Integrity.

"To me it seems they are trying to insulate agencies from future injunctions," she said. "Ultimately, courts will determine whether it complies with NEPA."

‘Not as open and shut’

The Trump administration’s NEPA rewrite won’t be an "overnight game changer" for how the courts view environmental analysis of energy and infrastructure projects, said Dan Farber, a law professor at the University of California, Berkeley.

"It sort of pushes things in a bad direction," he said. "But it’s not as open and shut as a lot of people seem to think."

Because CEQ doesn’t have the power to issue binding regulations, courts give the agency’s rulemakings less deference, Farber said.

Plus, he said, judges aren’t likely to completely turn away from legal precedent.

That’s not to say that the proposed changes wouldn’t have consequences. Farber added that some judges, especially in conservative-leaning courts, could be more apt to let agencies get away with less scrutiny of environmental and climate concerns.

Even if the Trump administration’s changes usher in a higher threshold for NEPA-based challenges, the proposed regulations wouldn’t affect current litigation, said Caitlin McCoy, a climate, clean air and energy fellow with Harvard University’s Environmental & Energy Law Program.

"Even once finalized, the regulations will not apply retroactively to lower the bar for NEPA analyses that were performed before it was final," she said.

The election factor

The impact of the NEPA overhaul hinges on how quickly CEQ can finalize the rules and whether President Trump clinches a second term.

"I think you are going to have a relatively small window of time in which courts are really going to grapple with this unless the Trump administration wins reelection, in which case there could be a robust role for the courts to figure out whether what the administration has done is legal," said Shoaff of the Sierra Club.

CEQ would need to finalize the regulations before the summer to avoid a Congressional Review Act reversal if Democrats seize control of Congress and the presidency.

Trump leaned on the formerly little-used statute to erase more than a dozen Obama-era environmental regulations in 2017. The act requires only the vote of a simple majority in the House and Senate to approve a rescission. Once a rule is wiped from the books, an agency cannot reintroduce a substantially similar regulation.

Brett Hartl, government affairs director at the Center for Biological Diversity, questioned whether the Trump administration could complete its regulatory agenda, which stretches far beyond the NEPA regulations, before the end of the president’s term.

"They have their work cut out to get it done by Jan. 20, 2021," he said. "I would expect it would be one of the last things they do in the first term probably, given the timing of the release."

The Trump administration could have secured more courtroom wins for its "energy dominance" agenda if it had ushered in the NEPA changes three years ago, Hartl said.

"Every single thing Trump did, we get to challenge under the old rules because, by the time they are final, his first term will be over," Hartl said.

"In some ways there is a little bit of irony to it."

This story also appears in Climatewire.