The Trump administration is rolling back Council on Environmental Quality regulations that for nearly 50 years have prescribed how agencies review the environmental effects of their actions.
A new interim final rule will leave it to individual agencies to determine how they conduct National Environmental Policy Act reviews in the future. The administration's move has the potential to upend decades of case law built around the CEQ rules, while adding uncertainty for projects currently going through NEPA analyses, said Deborah Sivas, a professor of environmental law at Stanford University.
“It throws a grenade into the middle of approval processes,” Sivas told Agri-Pulse. “And then it means you’re going to have to litigate a bunch of stuff to sort all of this out.”
Deborah Sivas (Stanford Law School photo)The interim final rule comes amid growing skepticism from courts about CEQ’s rulemaking authority. In November the D.C. Circuit Court of Appeals ruled 2-1 in Marin Audubon Society v. Federal Aviation Administration that CEQ lacks authority to issue binding regulations. Earlier this month, a federal district court judge in North Dakota came to the same conclusion.
"The issue of CEQ authority is clear: NEPA gives CEQ authority to promulgate non-binding guidelines, but CEQ may not issue rules that have the force and effect of law,” North Dakota District Court Judge Daniel Trainer wrote in a Feb. 3 order.
This questioning of CEQ’s authority factored into the new administration’s decision to scrap the rules. In a Federal Register notice, CEQ’s NEPA director, Jomar Maldonado, said the agency has “come to have serious concerns about its statutory authority to maintain its NEPA implementing regulations.”
Removing CEQ regulations doesn’t mean agencies won't continue to use them, Maldonado wrote. Many agencies have implementing procedures that “largely conform to CEQ’s regulations” and “after this action, agencies will remain free to use or amend those procedures."
Jonathan Wood, vice president of law and policy for the Property and Environment Research Center, said it’s likely agencies will continue to follow the old CEQ regulations in the short term because that’s what they’re familiar with. “But as the agencies start proposing and finalizing new NEPA regulations, the process might fundamentally change,” he added.
In a memo to federal department heads last week, CEQ Chief of Staff Katherine McClaine offered a list of suggestions agencies should follow when updating their internal NEPA procedures. She said they should meet deadlines established by Congress, look at a reasonable range of alternative actions and analyze “reasonably foreseeable effects,” but scrap Biden-era directives to include an environmental justice analysis.
Agencies’ interpretations of NEPA may diverge to some degree, Wood said. They may have different opinions on what projects qualify for categorical exclusions, which limit the size of the review an agency must conduct on certain projects. They also may create different processes for public comment or “front load” more intensive analyses to earlier stages of project development.
“I absolutely would expect that if you need a permit from EPA versus one from the Department of Agriculture, that process might look a little bit different,” he said.
Farmers and ranchers seek federal permits for a number of activities, like grazing on public lands or building a crossing on a protected waterway. Such permits may require NEPA reviews, which may force producers to navigate differing policies across a number of agencies.
“This really is going to impact every permit or authorization you try to get from the federal government,” said Wyoming-based lawyer Karen Budd-Falen.
Sivas, the Stanford professor, is currently working on a case that involves the U.S. Forest Service and said there has been some confusion within the agency over how to proceed with NEPA. “What we’ve heard is that they’re in disarray about how to actually comply with NEPA,” she said. Some agency staffers working on that project have also recently been fired, Sivas added.
Jonathan Wood (PERC photo)Wood expects an uptick in litigation in the short term as groups that have traditionally challenged NEPA projects look to convince judges to retain precedent around CEQ regulations, likely using the argument that those court decisions are interpretations of the statute itself.
If those arguments were to succeed, it would likely “significantly undercut” the effect of the new rule, because it would fix into place what was required under the old regulations, Wood said.
However, courts could decide to go the other way and say “every past case that was interpreting the CEQ regulation is irrelevant going forward,” he added. If this were to occur, Sivas said it would “wipe out half a century of jurisprudence” and force courts to start anew on many of the questions raised in previous NEPA cases.
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