GWA's Comments on Proposed NEPA Rules
By Clint Nagel Feb. 10, 2020
February 14, 2020
Council on Environmental Quality
730 Jackson Place NW
Washington, DC 20503
Attn: Docket No. CEQ-2019-0003
Dear CEQ NEPA Team:
The National Environmental Policy Act (NEPA) was enacted to enhance and protect our environment as a result of public discourse during the environmental movement of the late 1960s. The act itself became law on January 1, 1970. With its enactment, it established national environmental policies and goals, it set processes for federal agencies to enforce those policies and it established the President’s Council on Environmental Quality (CEQ), a division of the Executive Office of the President of the United States. The actual stated purpose of NEPA1 is:
“To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.”
Now we learn that CEQ wants to update NEPA implementation regulations and has issued a “Notice of Proposed Rulemaking to modernize and clarify the regulations to facilitate a more efficient, effective, and timely NEPA review process,” a quote from the NEPA.GOV website.
This is not the first time NEPA rules have been altered over the years, but this is likely the most comprehensive revision since 19782 when systematic regulations were adopted. The problem is the rationale behind this attempt is not for the betterment of our environment, but for the ease to expediate projects which would be detrimental to it. This is the view of the Gallatin Wildlife Association (GWA), a wildlife advocacy group of southwestern Montana. GWA is a local, all volunteer wildlife conservation organization which is dedicated to the preservation of wildlife and wildlife habitat in Southwest Montana. We are a non-profit 501-c (3) organization which has been in existence since 1976 representing hunters, anglers, and other wildlife advocates with the mission to protect habitat and conserve fish and wildlife populations on a sustainable basis for our children and future generations. GWA stands opposed to the changes recommended and proposed by the Council on Environmental Quality.
Again, this is not the first-time changes have been suggested or reviews made on the success or failure of this environmental landmark decision. The Council of Environmental Quality conducted a review of NEPA on the 25th anniversary of its implementation. In a report entitled “THE NATIONAL ENVIRONMENTAL POLICY ACT: A Study of Its Effectiveness After Twenty-five Years” released in January of 19973, page iii, 2nd paragraph, makes this claim.
“Overall, what we found is that NEPA is a success — it has made agencies take a hard look at the potential environmental consequences of their actions, and it has brought the public into the agency decision-making process like no other statute. In a piece of legislation barely three pages long, NEPA gave both a voice to the new national consensus to protect and improve the environment, and substance to the determination articulated by many to work together to achieve that goal. To that end, NEPA charges CEQ and all federal agencies with achieving "productive harmony" among our environmental, economic, and social objectives. NEPA directs federal agencies to open their doors, bring the public in, and offer genuine opportunities for participation and collaboration in decision-making.”
But the review was not all positive for NEPA. In the next paragraph, it lays out some of the problems which were encountered in those 25 years. Many of the problems seemed to be with the way agencies implemented the Act or their expectation of it. Since that time and through the years, there has been many attempts to streamline regulations and enhance its effectiveness. But most efforts were done without the systematic gutting of NEPA’s core values. Case in point is the example of December 14, 2014 when CEQ released a revised draft guidance4 stating that federal agencies should consider the effects of greenhouse gas emissions and climate change. That guidance superseded “the draft guidance issued by CEQ in February 2010, and applies to all Federal agency actions, including land and resource management actions.”
So, it is not unrealistic after 50 years to review the Act again. But to what end, for what purpose; to make sure the Act meets the environmental threats of the 21 st century or to weaken and dismantle the Act for corporate and industrial economic gain? This raises the question, why now? Why these changes? Since the Trump Administration has been in power, they have been obvious and vocal about their intent. The rationale given for these changes seems rather dubious since NEPA has already been changed several times throughout the past five (5) decades and through various laws, all of which were to make NEPA more efficient by reducing paperwork, delay, and producing time limits. Those were the same justifications and conclusions reached by House Representative Raul Grijalva from Arizona in his Aug. 10, 2018 letter5 to the Honorable Mary B. Neumayr, Chief of Staff of the Council on Environmental Quality.
NEPA has been a success. But by proposing the changes as stated by the Trump Administration, one must conclude they are only there to weaken and dismantle a 50-year successful bedrock piece of environmental legislation. GWA opposes this effort. How many times can we streamline paperwork, reduce delays, or shorten time limits without those actions resulting in harmful effects to the environment? The protection of the environment is the sole purpose of the Act. Again, it is “to promote efforts which will prevent or eliminate damage to the environment and biosphere” not to promote economic gain.
Since this comprehensive update is just that, comprehensive, it is daunting to go through the totality of the proposal to comment and find every objection that GWA has or might have with this document. One could easily describe this proposal as a major rewrite, which is why giving the public only 60 days to comment on this document is a major disservice to the American people. Most people aren’t even aware that this attempt to rewrite NEPA exists, let alone have time to comment on it. Never-the-less, GWA will do its best to comment on those major concerns, but we strongly suggest sincere consideration be given to lengthen the time for public comment.
Instills a new Purpose to NEPA (Part 1501.1)
CEQ proposes a new purpose to NEPA. On page 45 of the proposal, it states:
“CEQ proposes to replace the current 40 CFR 1501.1, “Purpose,” because it is unnecessary and duplicative, with a new section to address threshold considerations.”
To further that thought, on page 46 it states the following:
“CEQ proposes a new § 1501.1, “NEPA threshold applicability analysis,” to provide a series of considerations to assist agencies in a threshold analysis for determining whether NEPA applies.”
In reading the current 40 CFR 1501.1, we see no duplicity. We see no unnecessary phraseology. What we do see is the attempt to provide agencies with a tremendous amount of power for self-determination, to even determine whether or not NEPA rules are applicable. Agencies already have some leeway in this argument, but why give them a “free-pass”? Where is the oversight in this process? In a world of extreme political interference in executive branches of government, we can easily see that science can be discarded and the people’s voice silenced. In the current NEPA process, section 1501.1(b), there is this.
“Emphasizing cooperative consultation among agencies before the environmental impact statement is prepared rather than submission of adversary comments on a completed document.”
Where does this consultation come into play with the proposed changes? To us, cooperative consultation would be a good thing.
On page 46 of the proposed changes, it also states this:
“CEQ also proposes related changes in § 1507.3(c) to provide that agencies may identify actions that are not subject to NEPA in their agency NEPA procedures.”
This obviously relates to the discussion above and proves our point that this proposed change provides agencies “too much free will”. Agencies like people make mistakes. Where is or who has the power of oversight, to determine whether or not an environmental assessment or the lack thereof was determined correctly? What method of recourse do the American people have if it is determined that decisions were made incorrectly?
Apply NEPA early in the Process (Part 1501.2)
A simple change in wording can make a huge difference in how laws are implemented. A perfect example of this can be found on page 46 of the proposed changes.
“CEQ proposes to amend the introductory paragraph of § 1501.2, “Apply NEPA early in the process,” to change “shall” to “should” and “possible” to “reasonable.” Agencies need the discretion to structure the timing of their NEPA processes to align with their decision-making processes, consistent with their statutory authorities.”
The current reading of 1501.2 is presented here.
“Agencies shall integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts.”
To insert the new wording into this statement removes all accountability from agencies. There is a huge difference between “Agencies shall” and “Agencies should”. Again, this provides agencies too much power and leeway in fulfilling the original purpose and intent of NEPA. This law has been in effect for 50 years. We would think that agencies have had enough time by now to know and plan around schedules and meet deadlines without providing them an “opt out” option, which is essentially what these changes allow.
Determine the Appropriate Level of NEPA Review (Part 1501.3)
Currently, and as stated in the proposal, any federal action that is classified as a “major Federal action” demands a detailed statement. To determine whether or not an action is classified as “major”, there are three (3) levels of review that agencies can assess to determine whether or not a detailed statement is necessary. Those acts that are deemed insignificant, agencies can choose to label them with a “Categorical Exclusion”.
But in the proposal, the administration wants to make additions to this section. On page 48 of the proposal, there is this statement.
“While the existing CEQ regulations provide for these three levels of NEPA review, they do not clearly set out the decisional framework by which agencies should assess their proposed actions and select the appropriate level of review. To provide this direction and clarity, the proposed rule would add two additional sections to part 1501, renumber the remaining sections, and retitle two sections. The proposed § 1501.3, “Determine the appropriate level of NEPA review,” would describe the three levels of NEPA review and the basis upon which an agency makes a determination regarding the appropriate level of review for a proposed action. While this section would supplement the existing regulations, these concepts exist in the current 40 CFR 1501.4 (whether to prepare an EIS), 1508.4 (CEs), and 1508.9 (EAs).
Additionally, paragraph (b) would address the consideration of significance, which is central to determining the appropriate level of review. CEQ proposes to move and simplify the operative language from 40 CFR 1508.27, “Significantly.” CEQ proposes to change “context” to “potentially affected environment” and “intensity” to “degree” to provide greater clarity as to what agencies should consider in assessing potential significant effects.”
As to what this means, we think it can be best summed up in the overview of the attached reference. On the Mondaq website, three contributors from the Arnold and Porter6 international law firm, summed up the change this way in an article dated Jan. 16, 2020.
“CEQ proposes to revise the definition of "major federal action," which triggers NEPA's requirements. In a significant change, CEQ proposes to depart from longstanding precedent by giving the terms "major" and "significant" independent meaning. Under this revision, a federal project that is not "major" is not subject to NEPA review, even if the project has "significant" environmental impacts. By contrast, in a move that CEQ claims largely codifies case law, CEQ also proposes to find that "major federal actions" do not include "non-discretionary decisions" or federal projects with minimal Federal funding involvement, or control and responsibility. This provision also clarifies the meaning of "control and responsibility" and its applicability to financial assistance programs.”
Their summary is concerning, deeply concerning. This proposal on top of what we’ve already seen is troubling in that it shows these changes are minimizing protections of our environment by either making federal projects less susceptible for oversight or to any oversight at all. Again, these changes do not clarify or make NEPA more efficient, but less so in its effectiveness of environmental protection.
Categorical Exclusions (CE) (Part 1501.4)
As an advocacy organization for wildlife, GWA has observed several federal projects in recent years having been classified as categorical exclusions. Some of that designation is a result of Congressional legislation, but none-the-less, the trend of using CE(s) seems to be increasing. On pages 49 and 50 of the proposal, these stats are provided.
“Over the past 4 decades, Federal agencies have developed and documented more than 2,000 CEs. CEQ estimates that each year, Federal agencies apply CEs to approximately 100,000 Federal agency actions that typically require little or no documentation.”
According to the article previously referenced above on the Mondaq website6, they add to this claim of the overuse of categorical exclusions.
“The Government Accountability Office estimated in an April 2014 Report that 95% of NEPA reviews rely on a Categorial Exclusion (CE), which is a category of actions that an agency determines normally does not have a significant effect on the human environment.”
It appears that these proposed changes to NEPA are to make CE(s) more likely, not less. The authors from Arnold and Porter of said article agree. They state:
“CEQ proposes a number of changes that could significantly expand that practice.”
The Advance Notice of Proposed Rulemaking (ANPRM) provided comments claiming there should be more attention or “detailed direction” given to Categorical Exclusions. To meet that comment, the proposal suggests that they will provide a whole new section on CE(s). The proposal states this:
“To provide greater clarity, CEQ proposes to add a new section on CEs. The proposed § 1501.4, “Categorical exclusions,” would address in more detail the process by which an agency considers whether a proposed action is categorically excluded under NEPA. This proposed provision is consistent with the definition of categorical exclusion in 40 CFR 1508.4, which is a category of actions that the agency has found normally do not have a significant effect and listed in its agency NEPA procedures.”
As the proposal states, paragraph (b) of the new rule will establish requirements for the consideration of extraordinary circumstances once an agency an decides that a CE covers a proposed action. And in the proposed paragraph (b)(1) when it is decided that extraordinary circumstances are present, agencies can decide on mitigating circumstances. What does this mean? Again, words from the authors of Arnold and Porter say it best.
“CEQ proposes to allow mitigation when applying a CE to a proposed action, such that even where "extraordinary circumstances" are present (e.g., effects to federally-listed threatened and endangered species), agencies would be allowed to consider "mitigating circumstances" to bring the action under a CE. CEQ also proposes to allow agencies to adopt other agencies' CE determination.
To allow the use of “mitigating circumstances” as an excuse to defend the classification of “categorical exclusion” is unthinkable. GWA obviously disagrees with policies that promote this mindset. It appears this policy change is nothing more than stacking the deck; allowing questionable projects to proceed ahead under the guise of CE.
The Use of Time Limits (Part 1501.10)
To answer the charge that Environmental Assessments and Environmental Impact Statements take too long, the latest proposal by CEQ seeks to address this issue. On page 45 of the document, it says:
“CEQ also proposes to set presumptive time limits for the completion of NEPA reviews, and clarify the roles of lead and cooperating agencies to further the OFD policy and encourage more efficient and timely NEPA reviews.”
On page 64,
“In response to the ANPRM, CEQ received many comments on the lengthy timelines and costs of environmental reviews, and many suggestions for more meaningful time limits for the completion of the NEPA process. Accordingly, and to promote timely reviews, CEQ proposes to establish presumptive time limits for EAs and EISs consistent with E.O. 13807 and prior CEQ guidance.”
To answer the question of what kind of time limits one must only read further down in Section 1501.10, in the 2nd paragraph.
“Based on agency experience with the implementation of the regulations, CEQ is proposing in § 1501.10, “Time limits,” (current 40 CFR 1501.8) to add a new paragraph (b) to establish a presumptive time limit for EAs of 1 year and a presumptive time limit for EISs of 2 years. CEQ further proposes to provide that a senior agency official may approve in writing a longer time period.”
We understand the need and willingness to reduce delays and to avoid long, drawn out projects of environmental assessments or impact statements, but what premise are these time limits based upon? In a world where reality bites, we know that agencies are many times underfunded and understaffed. Manpower is stretched thin trying to perform routine day to day functions without meeting unnecessary or unreasonable deadlines. Even though a senior agency official may approve a longer time period, what kind of pressure will be placed upon him or her by an administration which (for some untold purpose) may not be willing to accept extensions?
If senior officials are responsible at all, it is inherently beneficial for agencies to be as efficient and timely as possible in order to cut down costs and free up manhours, etc. What is to be gained by artificial deadlines? Shouldn’t the priority be to get the job done in the most accurate, scientific and efficient way possible first without having to worry about artificial deadlines that could hamper the quality of the work? As we know when that happens, you risk litigation which could slow down the process even more. Isn’t it more important to get the job done right the first time? These time limits are too aggressive for being based upon ambiguous rationale.
Narrowing of Public Comment (Part 1503)
One of the most important and critical aspects of NEPA is its provisions for public comment. But here too, the proposal has wrought changes. To be fair there are some proposed changes that we feel are beneficial and therefore welcomed. An example would be the willingness to promote electronic means of public commenting. But there are some proposed changes that bring deep concern. On page 81, middle of third paragraph, there are these statements.
“CEQ also proposes that comments should explain why the issue raised is significant to the consideration of potential environmental impacts and alternatives to the proposed action, as well as economic and employment impacts, and other impacts affecting the quality of the environment.”
Continuing on…
“[Comments] must be significant enough to step over a threshold requirement of materiality before any lack of agency response or consideration becomes a concern. The comment cannot merely state that a particular mistake was made . . . ; it must show why the mistake was of possible significance in the results . . . .”
First concern is that agencies are putting the onus on the public to meet some threshold, a certain threshold before they are given the dignity of a response. How is the public supposed to know what those thresholds are? Are we to be given some direction? Many people feel that most of the public comments are ignored anyway. Doesn’t this just magnify the problem? One of the problems of NEPA, perhaps not of the act itself, but of the way agencies are implementing the process is the suspicion that agencies have already pre-determined the outcome. By gathering public comment, agencies are just going through the motion in order to check off the box. This rewrite of section 1503.3 is of grave concern.
Along the same light, not only does the public have to meet a certain threshold, but the public has to know the issue so well, so much in detail that we nearly have to hold a doctorate degree or higher before the agency will provide us the dignity of a response. Most of the general public doesn’t have time for those detailed responses. Most of the public will be lucky enough to know the EA or EIS is even available for comment. Don’t discount the voices of the general population. Even though their voice may not be as informed as those who spend countless time on a certain project, many who are getting paid to spend that time, don’t discount the voice of the common man. If he or she is taking time to raise an objection, no matter how brief or repetitious it may be, it is still a voice; a voice to be heard. It counts.
Our second concern over these proposed changes is found in the language of the first paragraph above where it says the public can provide comments concerning economic and employment impacts. The fingers of economics are being inserted into the depths of what is supposed to be an environmental assessment; hence the titles of “environmental assessments” or “environmental impact statements”. The insertion of economics into these environmental analyses minimizes the latter, but strengthens the former. This must not stand. It is a given that any federal project of any size is going to have further economic analyses done; ie: by local, state or even by federal agencies. There is no need to incorporate further economic analyses into an environmental assessment. Besides, there is some coverage of economics already included in these analyses. There is no need to weaken environmental analyses by highlighting the economic impact.
Preparations during Environmental Analyses (Part 1506)
There is this alarming statement on page 86 of CEQ proposed changes.
“In response to the ANPRM, commenters urged CEQ to allow greater flexibility for the project sponsor (including private entities) to participate in the preparation of the NEPA documents under the supervision of the lead agency. An update to § 1506.5, “Agency responsibility for environmental documents,” would give agencies more flexibility with respect to the preparation of environmental documents while continuing to require agencies to independently evaluate and take responsibility for those documents. Applicants and contractors would be able to assume a greater role in contributing information and material to the preparation of environmental documents, subject to the supervision of the agency. However, agencies would remain responsible for taking reasonable steps to ensure the accuracy of information prepared by applicants and contractors. If a contractor or applicant prepares the document, paragraph (c)(1) would require the decision-making agency official to provide guidance, participate in the preparation, independently evaluate the statement, and take responsibility for its content.”
Our concern here this could easily give those promoting a certain action more input in its analysis; thereby more influence, thereby affecting private or contractor’s profitability? Wouldn’t this lead to a potential conflict of interest? There is nothing wrong having contractors or applicants providing necessary information for the environmental analyses, information that is critical to the understanding of the environmental impacts, but when or if it comes to promotional information or biased information, then that is a problem. Even though agencies have final say and review over such documents, we have seen through the years, too much “cozy” connection between government and private interests. Such potential of graft just screams out for joy, if this proposal is adopted. GWA strongly disagrees with its inclusion in the final document. In other words, GWA does not trust the proper governmental oversight to take place and it pains us to make that statement.
Changes in Definitions (Part 1508)
Clarifying the meaning of “effects”:
Perhaps there is no more dangerous change in definitions than that found on page 97.
“Many commenters have urged CEQ to refine the definition of effects. Commenters raised concerns that the current definition creates confusion, and that the terms “indirect” and “cumulative” have been interpreted expansively resulting in excessive documentation about speculative effects and leading to frequent litigation. Commenters also have raised concerns that this has expanded the scope of NEPA analysis without serving NEPA’s purpose of informed decision making. Commenters stressed that the focus of the effects analysis should be on those effects that are reasonably foreseeable, related to the proposed action under consideration, and subject to the agency’s jurisdiction and control. Commenters also noted that NEPA practitioners often struggle with describing cumulative impacts despite numerous publications on the topic.”
Basically, there is much wrong with this statement. And the concern is justifiable in the sense that this idea is repeated several times throughout the document; pages 97-99, 109. What we see here is an attempt to dismantle or diminish (if you will) the idea of indirect and cumulative effects. This paragraph stresses that EAs and EISs should only focus on those “reasonably foreseeable” effects, discount those that may be of indirect or cumulative in nature. GWA honestly believes this is a short-sighted approach and one not based upon science. This idea that indirect consequences or cumulative effects don’t occur in nature is preposterous. This idea of not taking those effects into account is borderline malpractice or malfeasance of duty.
One perfect example is climate change. It just so happens that the present administration is full of climate-change deniers. Perhaps this reason alone is why the administration and CEQ want to diminish consideration of harmful effects of climate change on the planet. They don’t want any proposed projects linked to climate change fall under scrutiny whereby there could be an accumulation of harm. This alone is enough to not accept these proposed changes, but what about the scenarios whereby science has already been proven that indirect or cumulative effects are harmful to our environment or to man. Think of scenarios where heavy metals, or toxic pesticides, or other scenarios whereby those cumulative or indirect effects have had on the quality of our air, water, plants and wildlife. What about those indirect or cumulative effects?
Of course, if you discount the term and definition of “indirect” there is no need to refer to “direct effects” either. This supports the attempt to have all environmental analyses to be based upon this new idea of “reasonably foreseeable”. GWA strongly disagrees with this attempt.
This statement and paragraph at the bottom of page 99 restates it another way.
“Instead, agencies should focus their efforts on analyzing effects that are most likely to be potentially significant and be effects that would occur as a result of the agency’s decision. Agencies are not expected to conduct exhaustive research on identifying and categorizing actions beyond the agency’s control. With this proposed change and the proposed elimination of the definition of cumulative impacts, it is CEQ’s intent to focus agencies on analysis of effects that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action.”
This is a “bury your head in the sand” approach and is not based upon science or common sense. Along the same line, there is this statement on the first paragraph on page 100.
“To further assist agencies in their assessment of significant effects, CEQ also proposes to clarify that effects should not be considered significant if they are remote in time, geographically remote, or the result of a lengthy causal chain.”
This statement is basically arguing the same point, only here stating that environmental analyses don’t have to look at effects that may occur over a scope of time or even a geographical distance. CEQ is recommending that agencies only need to be concerned with effects that could or would occur in the near future or in the near geographical area. This is preposterous, unscientific, short-sighted and lacks common sense. GWA strongly admonishes the CEQ for such a proposal.
Clarifying the meaning of “major federal action”:
In the bottom paragraph of page 101 and continuing over onto page 102, there is a discussion over the need to clarify the meaning of the phrase “major federal action”.
“CEQ received many comments requesting clarification of the definition of major Federal action. For example, CEQ received comments proposing that non-Federal projects should not be considered major Federal actions based on a very minor Federal role. Commenters also recommended that CEQ clarify the definition to exclude decisions where agencies do not have discretion to consider and potentially modify their actions based on the environmental review.
CEQ proposes to amend the first sentence of the definition to clarify that an action meets the definition if it is subject to Federal control and responsibility, and it has effects that may be significant. CEQ proposes to replace “major” effects with “significant” in this sentence to align with the NEPA statute.”
This second paragraph refers to the heart of the current definition of “major federal action” as found in code 40 CFR & 1508.18 – Major Federal action. It states thusly.
“Major Federal action includes actions with effects that may be major and which are potentially subject to Federal control and responsibility. Major reinforces but does not have a meaning independent of significantly (§ 1508.27).”
Do we see the difference? There is a large difference between definitions of the current and the proposed. By simply eliminating the phrase as found in current law “which are potentially subject to Federal control” and changing it to “subject to Federal control”; the change is huge and may leave a large hole into whether or not projects fall under environmental review. The same could also be said for the first paragraph above. The proposal is eliminating environmental reviews for projects where there is a very minor Federal role. Those kinds of projects are not to be considered to have major Federal action, thereby eliminating those kinds of project from environmental review. This is contrary to current law.
Perhaps the reference previously used provides a better explanation. GWA would like to refer CEQ to the previous reference of an Arnold and Porter article found on the website Mondaq6. They state the following.
“CEQ proposes to revise the definition of "major federal action," which triggers NEPA's requirements. In a significant change, CEQ proposes to depart from longstanding precedent by giving the terms "major" and "significant" independent meaning. Under this revision, a federal project that is not "major" is not subject to NEPA review, even if the project has "significant" environmental impacts. By contrast, in a move that CEQ claims largely codifies case law, CEQ also proposes to find that "major federal actions" do not include "non-discretionary decisions" or federal projects with minimal Federal funding involvement, or control and responsibility.”
All said and done, this action, this proposed redefining of terms is going to exclude projects from falling under environmental review. I guess if you are the Trump Administration, this is the whole point, but not a purposeful review based upon science and common sense.
Establishing the meaning of “reasonable alternative”:
The proposal by CEQ claims that commenters requested a new definition of the phrase “reasonable alternative”. That definition is stated here and it is found on page 108.
“CEQ proposes a new definition of “reasonable alternative” that would provide that reasonable alternatives must be technically and economically feasible and meet the purpose and need of the proposed action.”
The rationale? It is stated at the bottom of page 108.
“Agencies are not required to give detailed consideration to alternatives that are unlikely to be implemented because they are infeasible, ineffective, or inconsistent with the purpose and need for agency action.”
Top of Page 109
“These changes would help reduce paperwork and delays by helping to clarify the range of alternatives that agencies must consider.”
While we acknowledge that economic feasibility could be and perhaps should be a consideration for an environmental analysis, we disagree that economic feasibility needs to be part of or included in the definition. We think it is safe to say, not all projects are created equal. Rather or not a project has an economic facet to it depends upon a “case-by-case” scenario. But it seems as if CEQ is too focused on the economic aspects of an environmental review, prioritizing that over the environment. It seems as if CEQ is saying the economics must be on the forefront of people’s minds. GWA isn’t saying that economics shouldn’t be a consideration in any environmental analyses, but to inject economics into the definition is fundamentally wrong. This forces the alternatives to consider issues outside the normal scope and concerns of NEPA. What this does or what it can do is provide the range of alternatives to meet the objectives of the applicant. We contend this would be a potential conflict of interest.
Once again from the previously used reference of an Arnold and Porter article found on the website Mondaq. They state the following.
“CEQ also proposes that, where applicable, the alternatives must meet the goals of the applicant.”
This is fundamentally wrong and GWA opposes this change.
And then there is Climate Change:
Finally, we would like to make a notation and comment about attempts by CEQ to discount the effects of climate change. It took the Obama Administration seven (7) years to get federal agencies to have a homogenized position on how to address climate change.7 But today, CEQ under the Trump Administration is trying to make it harder for the public and agencies to challenge effects of climate change in court. This attempt is nothing more than hiding or removing science from what is supposed to be a scientific evaluation of how proposed projects effect the environment. On page 110 of CEQ’s proposal, there are these statements.
“Further, CEQ received comments requesting that the regulations address analysis of greenhouse gas emissions and potential climate change impacts. CEQ has proposed guidance titled “Draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions”79 to address how NEPA analyses should address greenhouse gas (GHG) emissions. CEQ does not consider it appropriate to address a single category of impacts in the regulations. If CEQ finalizes this proposal, CEQ would review the draft GHG guidance for potential revisions consistent with the regulations. However, CEQ invites comments on whether it should codify any aspects of its proposed GHG guidance in the regulation, and if so, how CEQ should address them in the regulations.”
We would like to further state what is reported in the website for E&E News7 by author Jean Chemnick on January 9, 2020.
“The anticipated rules won't change what has been the common practice at most federal agencies since President Trump took office three years ago — which has been to check a box on climate change while ignoring a project's true contribution to global warming when carrying out reviews mandated by the National Environmental Policy Act.
But by changing 40-year-old regulations under the landmark law, the Trump White House hopes to make its limited approach to measuring a project's climate impacts harder to challenge in court, and to make it harder for future presidents to pick up where Obama left off. The previous administration compelled agencies to weigh the indirect and cumulative effects of a project on heat-trapping emissions before giving it a green light.”
Again, whether it is CEQ trying to diminish the role of climate change by cumulative effects on the environment or making it harder to challenge actions and proposals in court, it is clear that this proposal has been based upon politics rather than an honest attempt to make NEPA more effective. It is unscientific, unprincipled and unthinkable to lessen concerns of climate change from any environmental analyses. This is contrary to the original intent of NEPA itself and GWA protest this obvious attempt to weaken this bedrock piece of environmental legislation.
Summary:
The Gallatin Wildlife Association fears this attempt by the Administration is nothing more than a remolding of the National Environmental Policy Act into their own image. We are afraid that many of the changes made, are changes which we’re not aware of; meaning what we do know is just a “tip of the iceberg”. This makes us nervous. We would like to know, what is the source of these changes? Who and how were these proposed changes developed? Was the public involved? We feel that the environmental community was left out of this rewrite and that is unfortunate. The proposed changes in this proposal seem to be directed toward weakening and lessening the concerns of environmental impact. This is the anthesis of the original intent of the NEPA.
This is even more evident in the behavior and actions of the Trump Administration itself. An article in the Washington Post8 dated January 9, 2020 with the authors Juliet Eilperin and Brady Dennis, made this statement.
“President Trump on Thursday proposed fundamental changes to 50-year-old regulations in an effort to speed up new mines, pipelines and hundreds of other projects around the country, including some that could harm the environment and accelerate climate change. The move also could prevent communities from having much say about what gets built in their backyards.”
The article entitled “Trump proposes change to environmental rules to speed up highway projects, pipelines and more” showcases why this administration wants to rewrite the NEPA rules. It is for no other reason than to streamline and speed up the administration’s effort to increase infrastructure or help our economy. Or a more cynical explanation would be to change the rules to make the special interests more wealthy. GWA, of course, has no problem with actions to benefit the economy and the Nation’s infrastructure, but we don’t have to sacrifice our environment to make that happen. The rules of NEPA are not the reason for inaction on these economic fronts; it is politics. This document is nothing more than an outward expression of this Administration’s attempt to politicize the executive branch and corresponding agencies.
As a result of this political interference, the role of science in NEPA has been reduced or diminished. The role of public input and comment has been reduced or diminished. This rewrite even favors those who could be under government contract, thereby increasing concerns of conflict of interest and personal financial gain. All of this changes or redirects the intent of NEPA itself. The nine areas of concern listed in our comments strike at the heart of the NEPA and for this reason, we find fault with the current proposal. GWA cannot support this document and it should be altered to consider that science and voice of the American people have a say in how and when this law is implemented.
We urge CEQ to take our concerns to heart and rethink this action. We urge CEQ to involve the environmental community. Let’s have our 50-year review actually mean something, something that actually makes a positive change for our environment, not hinders it.
Sincerely,
Clinton Nagel, President
Gallatin Wildlife Association
References are not necessarily complete due to malfunctions of website. For complete references, please do so upon request.
References:
1.The National Environmental Policy Act of 1969, as amended
2.Council of Environmental Quality, Proposed Rules, May 31, 1978
3.THE NATIONAL ENVIRONMENTAL POLICY ACT A Study of Its Effectiveness After Twenty-five Years, Council on Environmental Quality, Executive Office of the President, January 1997
https://ceq.doe.gov/docs/ceq-publications/nepa25fn.pdf
4.Council on Environmental Quality, Steps to Modernize and Reinvigorate NEPA,
https://obamawhitehouse.archives.gov/administration/eop/ceq/initiatives/nepa
5.August 10, 2018 letter from Hon. Rep. Raul Grijalva, Chairman of the Natural Resources Committee, to Hon. Mary B. Neumayr, Chief of Staff, Council on Environmental Quality.
6.McTiernan, Edward, Rumsey, Allison B., and Shenkman, Ethan ; Mondaq, Arnold and Porter, January 2020 https://www.mondaq.com/unitedstates/x/884518/Environmental+Law/httpmondaqcomarticleasparticleid884504
7.Chemnick, Jean; E&E News, Trump is set to alter NEPA, upend years of climate planning
8.Eilperin, Juliet, Dennis, Brady, The Washington Post, Trump proposes change to environmental rules to speed up highway projects, pipelines and more, January 2020,
https://www.washingtonpost.com/climate-environment/white-house-wants-to-change-rules-to-speed-up-highway-projects-pipelines-drilling/2020/01/08/4e248fda-325a-11ea-9313-6cba89b1b9fb_story.html
GWA's Comments on Proposed NEPA Rules
By Clint Nagel Feb. 10, 2020
February 14, 2020
Council on Environmental Quality
730 Jackson Place NW
Washington, DC 20503
Attn: Docket No. CEQ-2019-0003
Dear CEQ NEPA Team:
The National Environmental Policy Act (NEPA) was enacted to enhance and protect our environment as a result of public discourse during the environmental movement of the late 1960s. The act itself became law on January 1, 1970. With its enactment, it established national environmental policies and goals, it set processes for federal agencies to enforce those policies and it established the President’s Council on Environmental Quality (CEQ), a division of the Executive Office of the President of the United States. The actual stated purpose of NEPA1 is:
“To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.”
Now we learn that CEQ wants to update NEPA implementation regulations and has issued a “Notice of Proposed Rulemaking to modernize and clarify the regulations to facilitate a more efficient, effective, and timely NEPA review process,” a quote from the NEPA.GOV website.
This is not the first time NEPA rules have been altered over the years, but this is likely the most comprehensive revision since 19782 when systematic regulations were adopted. The problem is the rationale behind this attempt is not for the betterment of our environment, but for the ease to expediate projects which would be detrimental to it. This is the view of the Gallatin Wildlife Association (GWA), a wildlife advocacy group of southwestern Montana. GWA is a local, all volunteer wildlife conservation organization which is dedicated to the preservation of wildlife and wildlife habitat in Southwest Montana. We are a non-profit 501-c (3) organization which has been in existence since 1976 representing hunters, anglers, and other wildlife advocates with the mission to protect habitat and conserve fish and wildlife populations on a sustainable basis for our children and future generations. GWA stands opposed to the changes recommended and proposed by the Council on Environmental Quality.
Again, this is not the first-time changes have been suggested or reviews made on the success or failure of this environmental landmark decision. The Council of Environmental Quality conducted a review of NEPA on the 25th anniversary of its implementation. In a report entitled “THE NATIONAL ENVIRONMENTAL POLICY ACT: A Study of Its Effectiveness After Twenty-five Years” released in January of 19973, page iii, 2nd paragraph, makes this claim.
“Overall, what we found is that NEPA is a success — it has made agencies take a hard look at the potential environmental consequences of their actions, and it has brought the public into the agency decision-making process like no other statute. In a piece of legislation barely three pages long, NEPA gave both a voice to the new national consensus to protect and improve the environment, and substance to the determination articulated by many to work together to achieve that goal. To that end, NEPA charges CEQ and all federal agencies with achieving "productive harmony" among our environmental, economic, and social objectives. NEPA directs federal agencies to open their doors, bring the public in, and offer genuine opportunities for participation and collaboration in decision-making.”
But the review was not all positive for NEPA. In the next paragraph, it lays out some of the problems which were encountered in those 25 years. Many of the problems seemed to be with the way agencies implemented the Act or their expectation of it. Since that time and through the years, there has been many attempts to streamline regulations and enhance its effectiveness. But most efforts were done without the systematic gutting of NEPA’s core values. Case in point is the example of December 14, 2014 when CEQ released a revised draft guidance4 stating that federal agencies should consider the effects of greenhouse gas emissions and climate change. That guidance superseded “the draft guidance issued by CEQ in February 2010, and applies to all Federal agency actions, including land and resource management actions.”
So, it is not unrealistic after 50 years to review the Act again. But to what end, for what purpose; to make sure the Act meets the environmental threats of the 21 st century or to weaken and dismantle the Act for corporate and industrial economic gain? This raises the question, why now? Why these changes? Since the Trump Administration has been in power, they have been obvious and vocal about their intent. The rationale given for these changes seems rather dubious since NEPA has already been changed several times throughout the past five (5) decades and through various laws, all of which were to make NEPA more efficient by reducing paperwork, delay, and producing time limits. Those were the same justifications and conclusions reached by House Representative Raul Grijalva from Arizona in his Aug. 10, 2018 letter5 to the Honorable Mary B. Neumayr, Chief of Staff of the Council on Environmental Quality.
NEPA has been a success. But by proposing the changes as stated by the Trump Administration, one must conclude they are only there to weaken and dismantle a 50-year successful bedrock piece of environmental legislation. GWA opposes this effort. How many times can we streamline paperwork, reduce delays, or shorten time limits without those actions resulting in harmful effects to the environment? The protection of the environment is the sole purpose of the Act. Again, it is “to promote efforts which will prevent or eliminate damage to the environment and biosphere” not to promote economic gain.
Since this comprehensive update is just that, comprehensive, it is daunting to go through the totality of the proposal to comment and find every objection that GWA has or might have with this document. One could easily describe this proposal as a major rewrite, which is why giving the public only 60 days to comment on this document is a major disservice to the American people. Most people aren’t even aware that this attempt to rewrite NEPA exists, let alone have time to comment on it. Never-the-less, GWA will do its best to comment on those major concerns, but we strongly suggest sincere consideration be given to lengthen the time for public comment.
Instills a new Purpose to NEPA (Part 1501.1)
CEQ proposes a new purpose to NEPA. On page 45 of the proposal, it states:
“CEQ proposes to replace the current 40 CFR 1501.1, “Purpose,” because it is unnecessary and duplicative, with a new section to address threshold considerations.”
To further that thought, on page 46 it states the following:
“CEQ proposes a new § 1501.1, “NEPA threshold applicability analysis,” to provide a series of considerations to assist agencies in a threshold analysis for determining whether NEPA applies.”
In reading the current 40 CFR 1501.1, we see no duplicity. We see no unnecessary phraseology. What we do see is the attempt to provide agencies with a tremendous amount of power for self-determination, to even determine whether or not NEPA rules are applicable. Agencies already have some leeway in this argument, but why give them a “free-pass”? Where is the oversight in this process? In a world of extreme political interference in executive branches of government, we can easily see that science can be discarded and the people’s voice silenced. In the current NEPA process, section 1501.1(b), there is this.
“Emphasizing cooperative consultation among agencies before the environmental impact statement is prepared rather than submission of adversary comments on a completed document.”
Where does this consultation come into play with the proposed changes? To us, cooperative consultation would be a good thing.
On page 46 of the proposed changes, it also states this:
“CEQ also proposes related changes in § 1507.3(c) to provide that agencies may identify actions that are not subject to NEPA in their agency NEPA procedures.”
This obviously relates to the discussion above and proves our point that this proposed change provides agencies “too much free will”. Agencies like people make mistakes. Where is or who has the power of oversight, to determine whether or not an environmental assessment or the lack thereof was determined correctly? What method of recourse do the American people have if it is determined that decisions were made incorrectly?
Apply NEPA early in the Process (Part 1501.2)
A simple change in wording can make a huge difference in how laws are implemented. A perfect example of this can be found on page 46 of the proposed changes.
“CEQ proposes to amend the introductory paragraph of § 1501.2, “Apply NEPA early in the process,” to change “shall” to “should” and “possible” to “reasonable.” Agencies need the discretion to structure the timing of their NEPA processes to align with their decision-making processes, consistent with their statutory authorities.”
The current reading of 1501.2 is presented here.
“Agencies shall integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts.”
To insert the new wording into this statement removes all accountability from agencies. There is a huge difference between “Agencies shall” and “Agencies should”. Again, this provides agencies too much power and leeway in fulfilling the original purpose and intent of NEPA. This law has been in effect for 50 years. We would think that agencies have had enough time by now to know and plan around schedules and meet deadlines without providing them an “opt out” option, which is essentially what these changes allow.
Determine the Appropriate Level of NEPA Review (Part 1501.3)
Currently, and as stated in the proposal, any federal action that is classified as a “major Federal action” demands a detailed statement. To determine whether or not an action is classified as “major”, there are three (3) levels of review that agencies can assess to determine whether or not a detailed statement is necessary. Those acts that are deemed insignificant, agencies can choose to label them with a “Categorical Exclusion”.
But in the proposal, the administration wants to make additions to this section. On page 48 of the proposal, there is this statement.
“While the existing CEQ regulations provide for these three levels of NEPA review, they do not clearly set out the decisional framework by which agencies should assess their proposed actions and select the appropriate level of review. To provide this direction and clarity, the proposed rule would add two additional sections to part 1501, renumber the remaining sections, and retitle two sections. The proposed § 1501.3, “Determine the appropriate level of NEPA review,” would describe the three levels of NEPA review and the basis upon which an agency makes a determination regarding the appropriate level of review for a proposed action. While this section would supplement the existing regulations, these concepts exist in the current 40 CFR 1501.4 (whether to prepare an EIS), 1508.4 (CEs), and 1508.9 (EAs).
Additionally, paragraph (b) would address the consideration of significance, which is central to determining the appropriate level of review. CEQ proposes to move and simplify the operative language from 40 CFR 1508.27, “Significantly.” CEQ proposes to change “context” to “potentially affected environment” and “intensity” to “degree” to provide greater clarity as to what agencies should consider in assessing potential significant effects.”
As to what this means, we think it can be best summed up in the overview of the attached reference. On the Mondaq website, three contributors from the Arnold and Porter6 international law firm, summed up the change this way in an article dated Jan. 16, 2020.
“CEQ proposes to revise the definition of "major federal action," which triggers NEPA's requirements. In a significant change, CEQ proposes to depart from longstanding precedent by giving the terms "major" and "significant" independent meaning. Under this revision, a federal project that is not "major" is not subject to NEPA review, even if the project has "significant" environmental impacts. By contrast, in a move that CEQ claims largely codifies case law, CEQ also proposes to find that "major federal actions" do not include "non-discretionary decisions" or federal projects with minimal Federal funding involvement, or control and responsibility. This provision also clarifies the meaning of "control and responsibility" and its applicability to financial assistance programs.”
Their summary is concerning, deeply concerning. This proposal on top of what we’ve already seen is troubling in that it shows these changes are minimizing protections of our environment by either making federal projects less susceptible for oversight or to any oversight at all. Again, these changes do not clarify or make NEPA more efficient, but less so in its effectiveness of environmental protection.
Categorical Exclusions (CE) (Part 1501.4)
As an advocacy organization for wildlife, GWA has observed several federal projects in recent years having been classified as categorical exclusions. Some of that designation is a result of Congressional legislation, but none-the-less, the trend of using CE(s) seems to be increasing. On pages 49 and 50 of the proposal, these stats are provided.
“Over the past 4 decades, Federal agencies have developed and documented more than 2,000 CEs. CEQ estimates that each year, Federal agencies apply CEs to approximately 100,000 Federal agency actions that typically require little or no documentation.”
According to the article previously referenced above on the Mondaq website6, they add to this claim of the overuse of categorical exclusions.
“The Government Accountability Office estimated in an April 2014 Report that 95% of NEPA reviews rely on a Categorial Exclusion (CE), which is a category of actions that an agency determines normally does not have a significant effect on the human environment.”
It appears that these proposed changes to NEPA are to make CE(s) more likely, not less. The authors from Arnold and Porter of said article agree. They state:
“CEQ proposes a number of changes that could significantly expand that practice.”
The Advance Notice of Proposed Rulemaking (ANPRM) provided comments claiming there should be more attention or “detailed direction” given to Categorical Exclusions. To meet that comment, the proposal suggests that they will provide a whole new section on CE(s). The proposal states this:
“To provide greater clarity, CEQ proposes to add a new section on CEs. The proposed § 1501.4, “Categorical exclusions,” would address in more detail the process by which an agency considers whether a proposed action is categorically excluded under NEPA. This proposed provision is consistent with the definition of categorical exclusion in 40 CFR 1508.4, which is a category of actions that the agency has found normally do not have a significant effect and listed in its agency NEPA procedures.”
As the proposal states, paragraph (b) of the new rule will establish requirements for the consideration of extraordinary circumstances once an agency an decides that a CE covers a proposed action. And in the proposed paragraph (b)(1) when it is decided that extraordinary circumstances are present, agencies can decide on mitigating circumstances. What does this mean? Again, words from the authors of Arnold and Porter say it best.
“CEQ proposes to allow mitigation when applying a CE to a proposed action, such that even where "extraordinary circumstances" are present (e.g., effects to federally-listed threatened and endangered species), agencies would be allowed to consider "mitigating circumstances" to bring the action under a CE. CEQ also proposes to allow agencies to adopt other agencies' CE determination.
To allow the use of “mitigating circumstances” as an excuse to defend the classification of “categorical exclusion” is unthinkable. GWA obviously disagrees with policies that promote this mindset. It appears this policy change is nothing more than stacking the deck; allowing questionable projects to proceed ahead under the guise of CE.
The Use of Time Limits (Part 1501.10)
To answer the charge that Environmental Assessments and Environmental Impact Statements take too long, the latest proposal by CEQ seeks to address this issue. On page 45 of the document, it says:
“CEQ also proposes to set presumptive time limits for the completion of NEPA reviews, and clarify the roles of lead and cooperating agencies to further the OFD policy and encourage more efficient and timely NEPA reviews.”
On page 64,
“In response to the ANPRM, CEQ received many comments on the lengthy timelines and costs of environmental reviews, and many suggestions for more meaningful time limits for the completion of the NEPA process. Accordingly, and to promote timely reviews, CEQ proposes to establish presumptive time limits for EAs and EISs consistent with E.O. 13807 and prior CEQ guidance.”
To answer the question of what kind of time limits one must only read further down in Section 1501.10, in the 2nd paragraph.
“Based on agency experience with the implementation of the regulations, CEQ is proposing in § 1501.10, “Time limits,” (current 40 CFR 1501.8) to add a new paragraph (b) to establish a presumptive time limit for EAs of 1 year and a presumptive time limit for EISs of 2 years. CEQ further proposes to provide that a senior agency official may approve in writing a longer time period.”
We understand the need and willingness to reduce delays and to avoid long, drawn out projects of environmental assessments or impact statements, but what premise are these time limits based upon? In a world where reality bites, we know that agencies are many times underfunded and understaffed. Manpower is stretched thin trying to perform routine day to day functions without meeting unnecessary or unreasonable deadlines. Even though a senior agency official may approve a longer time period, what kind of pressure will be placed upon him or her by an administration which (for some untold purpose) may not be willing to accept extensions?
If senior officials are responsible at all, it is inherently beneficial for agencies to be as efficient and timely as possible in order to cut down costs and free up manhours, etc. What is to be gained by artificial deadlines? Shouldn’t the priority be to get the job done in the most accurate, scientific and efficient way possible first without having to worry about artificial deadlines that could hamper the quality of the work? As we know when that happens, you risk litigation which could slow down the process even more. Isn’t it more important to get the job done right the first time? These time limits are too aggressive for being based upon ambiguous rationale.
Narrowing of Public Comment (Part 1503)
One of the most important and critical aspects of NEPA is its provisions for public comment. But here too, the proposal has wrought changes. To be fair there are some proposed changes that we feel are beneficial and therefore welcomed. An example would be the willingness to promote electronic means of public commenting. But there are some proposed changes that bring deep concern. On page 81, middle of third paragraph, there are these statements.
“CEQ also proposes that comments should explain why the issue raised is significant to the consideration of potential environmental impacts and alternatives to the proposed action, as well as economic and employment impacts, and other impacts affecting the quality of the environment.”
Continuing on…
“[Comments] must be significant enough to step over a threshold requirement of materiality before any lack of agency response or consideration becomes a concern. The comment cannot merely state that a particular mistake was made . . . ; it must show why the mistake was of possible significance in the results . . . .”
First concern is that agencies are putting the onus on the public to meet some threshold, a certain threshold before they are given the dignity of a response. How is the public supposed to know what those thresholds are? Are we to be given some direction? Many people feel that most of the public comments are ignored anyway. Doesn’t this just magnify the problem? One of the problems of NEPA, perhaps not of the act itself, but of the way agencies are implementing the process is the suspicion that agencies have already pre-determined the outcome. By gathering public comment, agencies are just going through the motion in order to check off the box. This rewrite of section 1503.3 is of grave concern.
Along the same light, not only does the public have to meet a certain threshold, but the public has to know the issue so well, so much in detail that we nearly have to hold a doctorate degree or higher before the agency will provide us the dignity of a response. Most of the general public doesn’t have time for those detailed responses. Most of the public will be lucky enough to know the EA or EIS is even available for comment. Don’t discount the voices of the general population. Even though their voice may not be as informed as those who spend countless time on a certain project, many who are getting paid to spend that time, don’t discount the voice of the common man. If he or she is taking time to raise an objection, no matter how brief or repetitious it may be, it is still a voice; a voice to be heard. It counts.
Our second concern over these proposed changes is found in the language of the first paragraph above where it says the public can provide comments concerning economic and employment impacts. The fingers of economics are being inserted into the depths of what is supposed to be an environmental assessment; hence the titles of “environmental assessments” or “environmental impact statements”. The insertion of economics into these environmental analyses minimizes the latter, but strengthens the former. This must not stand. It is a given that any federal project of any size is going to have further economic analyses done; ie: by local, state or even by federal agencies. There is no need to incorporate further economic analyses into an environmental assessment. Besides, there is some coverage of economics already included in these analyses. There is no need to weaken environmental analyses by highlighting the economic impact.
Preparations during Environmental Analyses (Part 1506)
There is this alarming statement on page 86 of CEQ proposed changes.
“In response to the ANPRM, commenters urged CEQ to allow greater flexibility for the project sponsor (including private entities) to participate in the preparation of the NEPA documents under the supervision of the lead agency. An update to § 1506.5, “Agency responsibility for environmental documents,” would give agencies more flexibility with respect to the preparation of environmental documents while continuing to require agencies to independently evaluate and take responsibility for those documents. Applicants and contractors would be able to assume a greater role in contributing information and material to the preparation of environmental documents, subject to the supervision of the agency. However, agencies would remain responsible for taking reasonable steps to ensure the accuracy of information prepared by applicants and contractors. If a contractor or applicant prepares the document, paragraph (c)(1) would require the decision-making agency official to provide guidance, participate in the preparation, independently evaluate the statement, and take responsibility for its content.”
Our concern here this could easily give those promoting a certain action more input in its analysis; thereby more influence, thereby affecting private or contractor’s profitability? Wouldn’t this lead to a potential conflict of interest? There is nothing wrong having contractors or applicants providing necessary information for the environmental analyses, information that is critical to the understanding of the environmental impacts, but when or if it comes to promotional information or biased information, then that is a problem. Even though agencies have final say and review over such documents, we have seen through the years, too much “cozy” connection between government and private interests. Such potential of graft just screams out for joy, if this proposal is adopted. GWA strongly disagrees with its inclusion in the final document. In other words, GWA does not trust the proper governmental oversight to take place and it pains us to make that statement.
Changes in Definitions (Part 1508)
Clarifying the meaning of “effects”:
Perhaps there is no more dangerous change in definitions than that found on page 97.
“Many commenters have urged CEQ to refine the definition of effects. Commenters raised concerns that the current definition creates confusion, and that the terms “indirect” and “cumulative” have been interpreted expansively resulting in excessive documentation about speculative effects and leading to frequent litigation. Commenters also have raised concerns that this has expanded the scope of NEPA analysis without serving NEPA’s purpose of informed decision making. Commenters stressed that the focus of the effects analysis should be on those effects that are reasonably foreseeable, related to the proposed action under consideration, and subject to the agency’s jurisdiction and control. Commenters also noted that NEPA practitioners often struggle with describing cumulative impacts despite numerous publications on the topic.”
Basically, there is much wrong with this statement. And the concern is justifiable in the sense that this idea is repeated several times throughout the document; pages 97-99, 109. What we see here is an attempt to dismantle or diminish (if you will) the idea of indirect and cumulative effects. This paragraph stresses that EAs and EISs should only focus on those “reasonably foreseeable” effects, discount those that may be of indirect or cumulative in nature. GWA honestly believes this is a short-sighted approach and one not based upon science. This idea that indirect consequences or cumulative effects don’t occur in nature is preposterous. This idea of not taking those effects into account is borderline malpractice or malfeasance of duty.
One perfect example is climate change. It just so happens that the present administration is full of climate-change deniers. Perhaps this reason alone is why the administration and CEQ want to diminish consideration of harmful effects of climate change on the planet. They don’t want any proposed projects linked to climate change fall under scrutiny whereby there could be an accumulation of harm. This alone is enough to not accept these proposed changes, but what about the scenarios whereby science has already been proven that indirect or cumulative effects are harmful to our environment or to man. Think of scenarios where heavy metals, or toxic pesticides, or other scenarios whereby those cumulative or indirect effects have had on the quality of our air, water, plants and wildlife. What about those indirect or cumulative effects?
Of course, if you discount the term and definition of “indirect” there is no need to refer to “direct effects” either. This supports the attempt to have all environmental analyses to be based upon this new idea of “reasonably foreseeable”. GWA strongly disagrees with this attempt.
This statement and paragraph at the bottom of page 99 restates it another way.
“Instead, agencies should focus their efforts on analyzing effects that are most likely to be potentially significant and be effects that would occur as a result of the agency’s decision. Agencies are not expected to conduct exhaustive research on identifying and categorizing actions beyond the agency’s control. With this proposed change and the proposed elimination of the definition of cumulative impacts, it is CEQ’s intent to focus agencies on analysis of effects that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action.”
This is a “bury your head in the sand” approach and is not based upon science or common sense. Along the same line, there is this statement on the first paragraph on page 100.
“To further assist agencies in their assessment of significant effects, CEQ also proposes to clarify that effects should not be considered significant if they are remote in time, geographically remote, or the result of a lengthy causal chain.”
This statement is basically arguing the same point, only here stating that environmental analyses don’t have to look at effects that may occur over a scope of time or even a geographical distance. CEQ is recommending that agencies only need to be concerned with effects that could or would occur in the near future or in the near geographical area. This is preposterous, unscientific, short-sighted and lacks common sense. GWA strongly admonishes the CEQ for such a proposal.
Clarifying the meaning of “major federal action”:
In the bottom paragraph of page 101 and continuing over onto page 102, there is a discussion over the need to clarify the meaning of the phrase “major federal action”.
“CEQ received many comments requesting clarification of the definition of major Federal action. For example, CEQ received comments proposing that non-Federal projects should not be considered major Federal actions based on a very minor Federal role. Commenters also recommended that CEQ clarify the definition to exclude decisions where agencies do not have discretion to consider and potentially modify their actions based on the environmental review.
CEQ proposes to amend the first sentence of the definition to clarify that an action meets the definition if it is subject to Federal control and responsibility, and it has effects that may be significant. CEQ proposes to replace “major” effects with “significant” in this sentence to align with the NEPA statute.”
This second paragraph refers to the heart of the current definition of “major federal action” as found in code 40 CFR & 1508.18 – Major Federal action. It states thusly.
“Major Federal action includes actions with effects that may be major and which are potentially subject to Federal control and responsibility. Major reinforces but does not have a meaning independent of significantly (§ 1508.27).”
Do we see the difference? There is a large difference between definitions of the current and the proposed. By simply eliminating the phrase as found in current law “which are potentially subject to Federal control” and changing it to “subject to Federal control”; the change is huge and may leave a large hole into whether or not projects fall under environmental review. The same could also be said for the first paragraph above. The proposal is eliminating environmental reviews for projects where there is a very minor Federal role. Those kinds of projects are not to be considered to have major Federal action, thereby eliminating those kinds of project from environmental review. This is contrary to current law.
Perhaps the reference previously used provides a better explanation. GWA would like to refer CEQ to the previous reference of an Arnold and Porter article found on the website Mondaq6. They state the following.
“CEQ proposes to revise the definition of "major federal action," which triggers NEPA's requirements. In a significant change, CEQ proposes to depart from longstanding precedent by giving the terms "major" and "significant" independent meaning. Under this revision, a federal project that is not "major" is not subject to NEPA review, even if the project has "significant" environmental impacts. By contrast, in a move that CEQ claims largely codifies case law, CEQ also proposes to find that "major federal actions" do not include "non-discretionary decisions" or federal projects with minimal Federal funding involvement, or control and responsibility.”
All said and done, this action, this proposed redefining of terms is going to exclude projects from falling under environmental review. I guess if you are the Trump Administration, this is the whole point, but not a purposeful review based upon science and common sense.
Establishing the meaning of “reasonable alternative”:
The proposal by CEQ claims that commenters requested a new definition of the phrase “reasonable alternative”. That definition is stated here and it is found on page 108.
“CEQ proposes a new definition of “reasonable alternative” that would provide that reasonable alternatives must be technically and economically feasible and meet the purpose and need of the proposed action.”
The rationale? It is stated at the bottom of page 108.
“Agencies are not required to give detailed consideration to alternatives that are unlikely to be implemented because they are infeasible, ineffective, or inconsistent with the purpose and need for agency action.”
Top of Page 109
“These changes would help reduce paperwork and delays by helping to clarify the range of alternatives that agencies must consider.”
While we acknowledge that economic feasibility could be and perhaps should be a consideration for an environmental analysis, we disagree that economic feasibility needs to be part of or included in the definition. We think it is safe to say, not all projects are created equal. Rather or not a project has an economic facet to it depends upon a “case-by-case” scenario. But it seems as if CEQ is too focused on the economic aspects of an environmental review, prioritizing that over the environment. It seems as if CEQ is saying the economics must be on the forefront of people’s minds. GWA isn’t saying that economics shouldn’t be a consideration in any environmental analyses, but to inject economics into the definition is fundamentally wrong. This forces the alternatives to consider issues outside the normal scope and concerns of NEPA. What this does or what it can do is provide the range of alternatives to meet the objectives of the applicant. We contend this would be a potential conflict of interest.
Once again from the previously used reference of an Arnold and Porter article found on the website Mondaq. They state the following.
“CEQ also proposes that, where applicable, the alternatives must meet the goals of the applicant.”
This is fundamentally wrong and GWA opposes this change.
And then there is Climate Change:
Finally, we would like to make a notation and comment about attempts by CEQ to discount the effects of climate change. It took the Obama Administration seven (7) years to get federal agencies to have a homogenized position on how to address climate change.7 But today, CEQ under the Trump Administration is trying to make it harder for the public and agencies to challenge effects of climate change in court. This attempt is nothing more than hiding or removing science from what is supposed to be a scientific evaluation of how proposed projects effect the environment. On page 110 of CEQ’s proposal, there are these statements.
“Further, CEQ received comments requesting that the regulations address analysis of greenhouse gas emissions and potential climate change impacts. CEQ has proposed guidance titled “Draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions”79 to address how NEPA analyses should address greenhouse gas (GHG) emissions. CEQ does not consider it appropriate to address a single category of impacts in the regulations. If CEQ finalizes this proposal, CEQ would review the draft GHG guidance for potential revisions consistent with the regulations. However, CEQ invites comments on whether it should codify any aspects of its proposed GHG guidance in the regulation, and if so, how CEQ should address them in the regulations.”
We would like to further state what is reported in the website for E&E News7 by author Jean Chemnick on January 9, 2020.
“The anticipated rules won't change what has been the common practice at most federal agencies since President Trump took office three years ago — which has been to check a box on climate change while ignoring a project's true contribution to global warming when carrying out reviews mandated by the National Environmental Policy Act.
But by changing 40-year-old regulations under the landmark law, the Trump White House hopes to make its limited approach to measuring a project's climate impacts harder to challenge in court, and to make it harder for future presidents to pick up where Obama left off. The previous administration compelled agencies to weigh the indirect and cumulative effects of a project on heat-trapping emissions before giving it a green light.”
Again, whether it is CEQ trying to diminish the role of climate change by cumulative effects on the environment or making it harder to challenge actions and proposals in court, it is clear that this proposal has been based upon politics rather than an honest attempt to make NEPA more effective. It is unscientific, unprincipled and unthinkable to lessen concerns of climate change from any environmental analyses. This is contrary to the original intent of NEPA itself and GWA protest this obvious attempt to weaken this bedrock piece of environmental legislation.
Summary:
The Gallatin Wildlife Association fears this attempt by the Administration is nothing more than a remolding of the National Environmental Policy Act into their own image. We are afraid that many of the changes made, are changes which we’re not aware of; meaning what we do know is just a “tip of the iceberg”. This makes us nervous. We would like to know, what is the source of these changes? Who and how were these proposed changes developed? Was the public involved? We feel that the environmental community was left out of this rewrite and that is unfortunate. The proposed changes in this proposal seem to be directed toward weakening and lessening the concerns of environmental impact. This is the anthesis of the original intent of the NEPA.
This is even more evident in the behavior and actions of the Trump Administration itself. An article in the Washington Post8 dated January 9, 2020 with the authors Juliet Eilperin and Brady Dennis, made this statement.
“President Trump on Thursday proposed fundamental changes to 50-year-old regulations in an effort to speed up new mines, pipelines and hundreds of other projects around the country, including some that could harm the environment and accelerate climate change. The move also could prevent communities from having much say about what gets built in their backyards.”
The article entitled “Trump proposes change to environmental rules to speed up highway projects, pipelines and more” showcases why this administration wants to rewrite the NEPA rules. It is for no other reason than to streamline and speed up the administration’s effort to increase infrastructure or help our economy. Or a more cynical explanation would be to change the rules to make the special interests more wealthy. GWA, of course, has no problem with actions to benefit the economy and the Nation’s infrastructure, but we don’t have to sacrifice our environment to make that happen. The rules of NEPA are not the reason for inaction on these economic fronts; it is politics. This document is nothing more than an outward expression of this Administration’s attempt to politicize the executive branch and corresponding agencies.
As a result of this political interference, the role of science in NEPA has been reduced or diminished. The role of public input and comment has been reduced or diminished. This rewrite even favors those who could be under government contract, thereby increasing concerns of conflict of interest and personal financial gain. All of this changes or redirects the intent of NEPA itself. The nine areas of concern listed in our comments strike at the heart of the NEPA and for this reason, we find fault with the current proposal. GWA cannot support this document and it should be altered to consider that science and voice of the American people have a say in how and when this law is implemented.
We urge CEQ to take our concerns to heart and rethink this action. We urge CEQ to involve the environmental community. Let’s have our 50-year review actually mean something, something that actually makes a positive change for our environment, not hinders it.
Sincerely,
Clinton Nagel, President
Gallatin Wildlife Association
References are not necessarily complete due to malfunctions of website. For complete references, please do so upon request.
References:
1.The National Environmental Policy Act of 1969, as amended
2.Council of Environmental Quality, Proposed Rules, May 31, 1978
3.THE NATIONAL ENVIRONMENTAL POLICY ACT A Study of Its Effectiveness After Twenty-five Years, Council on Environmental Quality, Executive Office of the President, January 1997
https://ceq.doe.gov/docs/ceq-publications/nepa25fn.pdf
4.Council on Environmental Quality, Steps to Modernize and Reinvigorate NEPA,
https://obamawhitehouse.archives.gov/administration/eop/ceq/initiatives/nepa
5.August 10, 2018 letter from Hon. Rep. Raul Grijalva, Chairman of the Natural Resources Committee, to Hon. Mary B. Neumayr, Chief of Staff, Council on Environmental Quality.
6.McTiernan, Edward, Rumsey, Allison B., and Shenkman, Ethan ; Mondaq, Arnold and Porter, January 2020 https://www.mondaq.com/unitedstates/x/884518/Environmental+Law/httpmondaqcomarticleasparticleid884504
7.Chemnick, Jean; E&E News, Trump is set to alter NEPA, upend years of climate planning
8.Eilperin, Juliet, Dennis, Brady, The Washington Post, Trump proposes change to environmental rules to speed up highway projects, pipelines and more, January 2020,
https://www.washingtonpost.com/climate-environment/white-house-wants-to-change-rules-to-speed-up-highway-projects-pipelines-drilling/2020/01/08/4e248fda-325a-11ea-9313-6cba89b1b9fb_story.html