Restoring Public Interest to the National Environmental Policy Act Process

April 20, 2022 | 4:32 pm
a hand holds a glass globe; a forest scene is reflected in the glassArthur Ogleznev/Pexels
Andrew Rosenberg
Former contributor

On Monday, the Biden administration announced changes to the guidelines for federal agencies’ compliance with the National Environmental Policy Act (NEPA).  That’s the law requiring an evaluation of  impacts on the human and natural environment before all “federal actions” can  proceed.  While it is often thought to apply primarily to construction projects, NEPA actually covers federal permitting of all types, and actions under many other statutes, such as the Clean Water Act, land and ocean management, and pretty much everything the federal government does that may affect the environment.

The new changes reverse some, but not all, decisions by the Trump administration which had constrained the types of impacts environmental reviews could consider and the discretion agencies could take in meeting NEPA’s requirements. For example, the Trump administration directed reviews to focus only on so-called direct impacts, ignoring indirect or cumulative effects. If a permit was under consideration for a facility that would fill wetland, emit pollution or otherwise impact the environment, for example, agencies could only look at the immediate “foreseeable” effects of that activity.  But, under Trump administration policy, they were directed to ignore other permits in the same area, the overall degree of habitat loss, pollution burden, community impacts, or the longer-term effects of climate change or secondary pollution.

The new rules, which take effect in 30 days, also eliminate a key Trump administration restriction that had allowed agencies to consider only the purpose and need for a project as defined by those proposing it. In other words, agencies weren’t allowed to think about impacts other than those the proponents stated were intended—ignoring the fact that unintended consequences often cause the largest problems. The new Biden rules allow agencies more flexibility in defining purpose and need, crucially including community input as part of that process.

Finally, the Trump administration wouldn’t allow agencies to go beyond its guidelines in considering other factors and effects, essentially making the guidelines a “ceiling” for the requirements of the analysis. By contrast, the Biden Administration is using the guidelines as a minimum standard or “floor” for analysis, giving agencies flexibility to include other statutory requirements within the NEPA review.

More changes to come

The latest changes represent “phase one” of coming NEPA rule changes. The Biden administration has yet to remove other key, damaging changes promulgated under Trump, such as arbitrary time and page limits regardless of an action’s complexity or scope. Those limitations serve no useful purpose. 

In phase two, hopefully the administration will strengthen the process so it works more in the public interest.  For example:

  • Rather than merely considering the impact of climate change, future NEPA analyses could require explicit and targeted documentation about who will be most impacted.
  • Rather than just evaluating cumulative impacts, future NEPA analyses could require explicit consideration of alternatives that reduce impacts on overburdened communities–usually communities of color and low income communities.
  • Future NEPA analyses could be directed to include much clearer requirements for input and engagement from impacted communities, and better justifications for choosing one action over others with lesser or different impacts.
  • Future guidelines could specifically allow for the inclusion of other forms of information in the analyses, such as community members’ lived experience and traditional indigenous knowledge.
  • Rather than arbitrary timelines that can be gamed by applicants, the NEPA process could specify timelines and requirements that allow for full information sharing between applicants, agencies, and the public even before the formal review begins.

These are just a few ideas from my own understanding of NEPA and its importance in serving the public interest.  I hope many others will engage in the process as this administration takes its next steps.  For now, here’s thanks to President Biden for a much-needed and reasonable first step.