After ranchers celebrated revisions to NEPA regulations last fall, the streamlining process may be back to square one.
The Council on Environmental Quality (CEQ) announced on Oct. 7 a proposed rule to modify the regulations for implementing the National Environmental Policy Act (NEPA) and to restore them prior to 2020.
The proposed rule would restore three procedural provisions of NEPA “to provide communities and decision makers with more complete information about proposed projects, their environmental and public health impacts, and their alternatives,” according to a White House statement.
“Patching these holes in the environmental review process will help reduce conflict and litigation and help clear up some of the uncertainty that the previous administration’s rule caused,” said CEQ Chair Brenda Mallory.
Karen Budd-Falen, who served for two years during the Trump administration in the Department of the Interior as the deputy solicitor for wildlife and parks, was on the writing team for the NEPA revisions.
Budd-Falen told WLJ she not only had experience as a lawyer, but also as a rancher, so she understood the practical application of the rules. “We can’t wait six years to know if a grazing permit is going to get renewed,” Budd-Falen said. “That isn’t how it works in the real world. So that’s what we did—that was really the light we rewrote the rules in—besides the fact that they hadn’t been updated in 40 years.”
She added that she thinks reversing the Trump administration revisions is going to have a negative impact because every business, farmer or rancher needs a final decision. “It’s the waiting and studying a decision for years without ever making a decision that I think is impossible for a business to contend with,” Budd-Falen said.
She also explained that in the NEPA revisions, it was written that agencies could only consider actions and alternatives that they had jurisdiction over. If the revisions are reversed, authority will be restored to give consideration to any federal agency.
“From a practical matter, I don’t know how you can make a decision to implement something that you don’t control,” Budd-Falen said.
Proposed rules
The first proposed rule is to restore the requirement that federal agencies evaluate all the relevant environmental impacts of the decisions they are making. This specifically requires agencies to consider the “direct,” “indirect” and “cumulative” impacts of a proposed decision. This includes evaluating climate change impacts and consequences of releasing additional pollution in communities.
The second proposed rule is to restore the full authority of agencies to work with communities to look at alternative approaches that could minimize environmental and public health costs. This change would give agencies flexibility to determine the purpose and need of a project. The White House said the 2020 NEPA rule “limited federal agencies’ ability to develop and consider alternative designs or approaches that do not fully align with the stated goals of the project’s sponsor, often a private company.”
Finally, the third proposed rule would establish NEPA regulations “as a floor, rather than a ceiling, for the environmental review standards that federal agencies should be meeting.” This would restore agencies’ abilities to tailor their NEPA procedures, the White House said.
Comments on the rules may be submitted by searching for document number CEQ-2021-0002 at federalregister.gov. Comments are due by Nov. 22. CEQ will also be hosting two public meetings on the proposed rule, which will be held online on Oct. 19 from 1-4 p.m. EDT and Oct. 21 from 5-8 p.m. EDT. To register, visit nepa.gov.
Background
In 2017, then-President Donald Trump issued an executive order (EO) titled Establishing Accountability in the Environmental Review and Permitting Process for Infrastructure Projects. This EO directed CEQ to review and revise the NEPA regulations. In January 2020, CEQ published a notice of proposed rulemaking, broadly revising the 1978 NEPA regulations, which were established by former President Richard Nixon and former President Jimmy Carter.
The revised NEPA regulations were largely celebrated by those in agriculture, as they helped streamline the review process. The revisions set two-year limits for agencies to issue environmental impact statements (EISs), required joint paperwork when multiple agencies work together, required senior officials to oversee compliance and gave applicants a greater role in preparing EISs.
When the rule went into effect in the fall of 2020, National Cattlemen’s Beef Association Executive Director of Natural Resources and Public Lands Council Executive Director Kaitlynn Glover had said, “In a time where millions of acres are already burning due to delayed or cancelled treatments bogged down as a result of inefficient NEPA processes, there is no time left to waste.”
She added: “Ranchers will now be able to move faster in making range improvements that can prevent and reduce the impacts of wildfires.” — Anna Miller, WLJ managing editor
