Ten States Oppose CEQ’s Plan for NEPA Regulatory Overhaul

Washington, D.C.— A coalition of 10 attorneys general and state agencies submitted comments to the Council on Environmental Quality (CEQ) before yesterday’s comment deadline. The comments were led by California Attorney General Xavier Becerra, New York Attorney General Barbara Underwood, and Washington State Attorney General Bob Ferguson, and joined by Attorneys General of Illinois, Maryland, Massachusetts, New Jersey, Oregon, and Vermont, and the Pennsylvania Department of Environmental Protection. The States urged restraint and questioned the necessity of CEQ’s far-reaching reevaluation of its own National Environmental Policy Act (NEPA) regulations, arguing that the scope of CEQ’s review signals that a comprehensive overhaul of decades of regulatory precedent appears to be underway.

The States’ comments come in response to a June 20 Advanced Notice of Proposed Rulemaking from CEQ in which the Council announced its consideration of a plan to “update” and “modernize” its implementation of NEPA. The CEQ cited the significant passage of time since NEPA’s enactment as the justification for its action. In their comment letter, the States note that the CEQ has shown “remarkable constraint” in prior administrations, revising existing regulations only when “absolutely necessary.”

“NEPA has a simple mandate: when our federal agencies make policy and consider proposed projects, they must thoroughly assess how their decisions impact our environment and our public health,” said Attorney General Becerra. “Undermining NEPA and the transparency it provides puts our nation at risk of falling further behind in our fight against climate change. Weakening NEPA’s strong standards hinders our work to protect and improve the environment and the health of all Californians, environmental justice communities in particular. We’re sending President Trump a message: if you roll back the safeguards protecting our nation’s environment and put polluters in the driver’s seat, we will hold you accountable.”

In their comment letter the States argued that there are no data to support the need for significant regulatory changes to NEPA, and raised a number of specific concerns about the effects of major revisions. These concerns include the potential for new limits on the public’s ability to participate in future environmental reviews, threats to the health of the States’ residents and local ecosystems, a potential weakening of the federal review process for nuclear waste sites and a loss in States’ capacity to enforce their own environmental protections.

The States also requested that the CEQ reinstate its NEPA Guidance on Climate Change finalized under the Obama Administration, and avoid any regulatory revisions that would enable the federal government to avoid evaluating climate change-related environmental impacts in future NEPA reviews.

“NEPA is a foundational pillar of environmental law, and in the 48 years since NEPA was enacted more than 100 countries have modeled landmark environmental policies and regulations after it,” said David J. Hayes, Executive Director of the State Energy and Environmental Impact Center. “The Trump Administration has already shown its anti-NEPA colors by shorting public participation in – and environmental analyses of – major pipeline, oil drilling and other federal projects that carry significant public health and environmental risks. State attorneys general will not let the Trump Administration use regulatory means to achieve an unlawful statutory end: evisceration of the National Environmental Policy Act.”

Attorneys General of Illinois, Maryland, Massachusetts, New Jersey, New York, Oregon, Vermont and Washington joined California in submitting the comments. The Secretary of the Commonwealth of Pennsylvania’s Department of Environmental Protection also joined the coalition.

BACKGROUND

NEPA is commonly referred to as the “Magna Carta” of federal environmental policymaking. First signed into law in January 1970, NEPA established the CEQ to oversee its implementation. Among other responsibilities, the CEQ is tasked with coordinating between federal agencies to ensure a consistent regulatory approach is used to evaluate the environmental impacts of major federal actions.

In addition to the States’ own comment letter, a large number of comments filed in response to CEQ’s ANPR have noted that the Council’s questions appear designed to undermine NEPA’s mission, taking aim at decades of established regulatory precedent and nullifying congressional intent. As one of the only tools for the public to provide meaningful input on federal initiatives that have significant and lasting impacts on communities, wildlife and natural resources, NEPA is widely considered a vital democratic safeguard for promoting environmental justice.

The Trump Administration has characterized NEPA as a regulatory burden that slows economic growth and critical infrastructure projects, but the Congressional Research Service has found a lack of data to support this claim. Instead, the Congressional Research Service found that other factors like litigation, entitlements, permitting and developer-led changes are responsible for “between 68% and 84%” of delays.

###

About the State Energy & Environmental Impact Center:
The State Energy & Environmental Impact Center at NYU School of Law is a nonpartisan academic center at NYU School of Law. The Center is dedicated to working towards a healthy and safe environment, guided by inclusive and equitable principles. The Center studies and supports the work of state attorneys general (AGs) in defending, enforcing, and promoting strong laws and policies in the areas of climate, environmental justice, environmental protection, and clean energy.