The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last August, President Trump issued Executive Order 13807, "Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects," which instructed federal agencies to "ensure that the Federal environmental review and permitting process for infrastructure projects is coordinated, predictable, and transparent."
Pursuant to this instruction, in January the Council on Environmental Quality proposed far-reaching revisions to the regulations instructing federal agencies how to comply with the National Environmental Policy Act (NEPA), which requires that federal agencies complete environmental impact statements (EISs) before undertaking major actions that have a significant effect on the environment.
As the CEQ noted, federal NEPA regulations had not been meaningfully revised in over forty years. In that time, the costs of NEPA compliance—in terms of both time and money—have increased substantially, and far exceed what CEQ had anticipated. In 1981, CEQ predicted that the EIS process would generally take less than a year. In practice, however, the EIS process has taken far longer. According to CEQ, the "average" time for an EIS and agency decision is over four years, and the median time is over three years. The typical EIS is also something of a tome, as the average length is 661 pages. (When CEQ adopted its first NEPA regulations, it expected the average EIS would be closer to 150 pages.)
In order to address the costs and delays associated with NEPA compliance, CEQ proposed narrowing the range of impacts and effects agencies must consider, as well as narrowing the universe of agency actions that trigger NEPA's requirements. Among other things, agencies are not required to assess the cumulative or indirect effects of agency actions. Further, agencies are not required to consider policy alternatives that lie outside an agency's jurisdiction or legal authority. CEQ also proposed setting presumptive page and time limits on final EISs.
On July 16, CEQ were finalized its proposed reforms, prompting immediate legal challenges. In total, four separate lawsuits against the new NEPA regulations were filed by environmentalist groups and blue states. In only one of the four suits did the plaintiffs seek an injunction or stay to prevent the rules from taking effect, and that motion was denied in a ruling last Friday. As a consequence the new NEPA rules took effect today (though you would not know it from reading most national newspapers). James McElfish of the Environmental Law Institute has a useful overview of the final revisions on ELI's Vibrant Environment blog.
Some federal agencies have eschewed reliance upon Chevron deference when adopting new regulations. The Environmental Protection Agency (EPA), for example, has argued that some of its regulatory reforms are compelled by the plain text of the relevant statutes. CEQ, on the other hand, explicitly argues that these new regulations "embody CEQ's interpretation of NEPA for Chevron purposes." CEQ further argues that its interpretation of NEPA's requirements preempts any alternative interpretations previously offered by any other federal agencies, and that its new rules override any preexisting agency regulations or guidelines purporting to require more extensive procedures. In other words, the new regulations detail what is both the floor and the ceiling of what federal agencies are expected to do in order to comply with NEPA.
The various legal challenges to the new NEPA rules will proceed, and one of them may eventually succeed. In the meantime, federal agencies will have an easier time complying with NEPA's requirements, and it will be more difficult for environmentalist and NIMBY groups to use NEPA to obstruct infrastructure and other federal projects.