Cutting the Heart out of NEPA

A wilderness landscape at sunset with trees in the foreground and mountains in the distance.

By David J. Hayes
January 9, 2020

The National Environmental Policy Act (NEPA) requires that federal officials have a full understanding of the environmental ramifications of proposed projects, and alternatives, before issuing permits or other required approvals. For 50 years, the law has successfully exposed the risks of environmentally damaging projects and ensured public accountability for major project approvals.
NEPA’s environmental forcing function has always irritated project proponents and political supporters who have vested interests in downplaying environmental risks and obtaining quick approvals, with a minimum of public visibility or litigation exposure. The administration is in this camp. The President and agency heads routinely complain about NEPA requirements, particularly when courts hold up favored coal, oil and gas energy projects because of NEPA non-compliance (as illustrated below). 
So now, in its latest effort to do a NEPA work-around, the administration is proposing revisions to long-standing NEPA regulations. This is another administration gambit to avoid NEPA compliance, particularly with regard to analyzing the adverse climate impacts associated with fossil fuel-related projects, and the full sweep of environmental impacts associated with other, large-footprint energy projects.
The administration’s primary NEPA strategy to date has been to repeal helpful NEPA climate impact guidance (offering only a vacuous replacement) and, when completing environmental assessments and impact statements, to downplay, or simply ignore, NEPA’s legal requirements that it address climate-related and other environmental impacts for fossil fuel projects.
Courts have not gone along with this strategy. In Sabal Trail, for example, the District of Columbia Court of Appeals rejected the Federal Energy Regulatory Commission’s (FERC) approval of a major new gas pipeline due to its failure to complete a NEPA-required analysis of significant increases in upstream and downstream greenhouse gas emissions that would follow construction of a major new gas pipeline. (Demonstrating the administration’s antipathy to NEPA, a recalcitrant FERC later reapproved the Sabal Trail pipeline without curing its deficient NEPA analysis. And FERC has continued to thumb its nose at its NEPA obligations by approving additional gas pipeline projects without completing a legally required climate impacts analysis.)
Other courts have mowed down approvals for administration-supported fossil fuel projects for failing to comply with NEPA requirements vis-à-vis climate and other environmental impacts. High profile examples include major oil and gas project approvals in Colorado and Wyoming; the XL pipeline; and the Interior Department’s lifting of the coal leasing moratorium
More NEPA failures are unfolding before our eyes. Regarding potential oil drilling in the Arctic National Wildlife Refuge, for example, the Interior Department has failed to describe − much less analyze in an environmental impact statement (EIS) − key environmental impacts associated with a proposed “oil and gas program” for the Arctic Refuge. Likewise, the Army Corps of Engineers’ draft EIS for the proposed Pebble Mine in Alaska is woefully deficient, as described by a former industry mining expert, and the EPA itself. 
Against this backdrop, it is no surprise that new regulatory proposals released today would radically restrict the scope of NEPA reviews. Under the proposal, for example, NEPA’s statutory requirement to consider project alternatives need only consider alternatives that meet the project proponent’s goals or that fall within the jurisdiction of the lead agency. Since a gas pipeline proponent presumably would have no interest in considering a clean energy alternative, or combining its project with a redundant, parallel pipeline sponsored by a competitor (as with Virginia’s Atlantic Coast and Mountain Valley pipelines), those environmentally preferable alternatives would not even be on the table. Likewise, the “purpose and need” that defines the scope of environmental analysis would also be based on “the applicant’s goals,” apparently inviting the Pebble Mine proponents and similarly-situated project developers to avoid analyzing easily predictable expansions of operations.
Just as troubling, proposed regulations would remove court-approved requirements to consider “direct,” “indirect,” and “cumulative” environmental impacts, ostensibly to “simplify” the definition of environmental “effects.” And, environmental effects requiring analysis would no longer qualify as “significant” if they are “remote in time, geographically remote, or the result of a lengthy causal chain.” 
It’s not hard to see what’s going on here. Nothing less than an effort to isolate project reviews from the broader context in which they sit. Long-standing consideration of knowable and foreseeable connected and cumulative project impacts, which are particularly critical when considering climate-related and other air pollution impacts, would go out the window.

These definitional changes, along with additional bomblets buried throughout nearly 200 pages of proposed rule changes, attack the heart of NEPA. They will not find their way into governing law without a fight.

David J. Hayes is a nationally recognized environmental, energy and natural resources lawyer who leads the State Energy & Environmental Impact Center.