FOR IMMEDIATE RELEASE
March 11, 2020
Contact: Tom Lalley
Tom.Lalley@nyu.edu
202-997-0899


20 Attorneys General Rail Against 'Unlawful, Unreasonable, and Unjustified' Attack on NEPA

Proposed changes to the National Environmental Policy Act’s implementing regulations would limit public input and weaken evaluation of environmental impacts of federal actions.

Washington, D.C. — A coalition of 20 attorneys general led by Washington Attorney General Bob Ferguson, California Attorney General Xavier BecerraNew York Attorney General Letitia James and District of Columbia Attorney General Karl Racine submitted extensive comments yesterday denouncing the Trump administration’s proposal to gut environmental reviews of federal actions as “unlawful, arbitrary and capricious” and calling for its withdrawal. The proposed rule, released in January by the White House Council on Environmental Quality (CEQ), represents the most significant change to how the National Environmental Policy Act (NEPA) is implemented since the existing guidelines were issued more than 50 years ago.
 
In their comments, the AGs detail how the administration’s proposed rule undermines NEPA’s plain language and purpose and discards decades of successful implementation. New restrictions would limit public participation and impermissibly narrow the scope of environmental reviews. The AGs add that the changes would “inject significant uncertainty into the NEPA process” and would leave states with the responsibility to “fill the gaps left by inadequate NEPA environmental reviews.”

Enacted in 1970, NEPA has frequently been described as the “basic national charter for protection of the environment” ensuring that the federal government takes a “hard look” at the environmental consequences of federal decisions through a process that is transparent, informed and shaped by public input. The law applies to all federal agencies and to most of the activities they approve or carry out. Courts, including the Supreme Court, have long recognized the NEPA’s important role “that environmental concerns be integrated into the very process of agency decision-making.”
 
“It is unacceptable for the Trump administration to gut one of our nation’s bedrock environmental laws,” said Washington Attorney General Bob Ferguson. “The National Environmental Policy Act is a success story. For more than 50 years, NEPA has ensured that our federal agencies make well-informed decisions about the environmental and public health impacts of their actions and that the public has a voice in the decision making process. By proposing these new regulations, the Trump administration undermines the integrity of this review process, elevating industry interest above the voice of the people and the protection of our shared environment.”
 
“The Trump Administration is rewriting the law in order to fast-track projects that pollute our air and water,” said California Attorney General Xavier Becerra. “NEPA was enacted to provide a critical check on federal actions in our backyard. My office stands ready to fight against the Trump Administration’s attempt to open countless loopholes for polluters to avoid any NEPA analysis. At the California Department of Justice we will continue to fight for a clean, healthy, and safe environment for all Californians.”
 
“In blatant disregard for the law, the Trump Administration wants to unravel one of our country’s most important tools to protect our environment and safeguard public health,” said Massachusetts Attorney General Maura Healey. “This law has a 50-year track record of helping states and communities address environmental challenges. We strongly urge the Administration to withdraw this dangerous proposal, which puts our planet at even greater risk.”
 
“This proposal takes a hack saw to over half a century of environmental protections, blatantly ignoring science and reality,” said Connecticut Attorney General William Tong. “We have an obligation to understand the impact of our actions — particularly major energy and infrastructure projects — on the environment and to consider all possible alternatives and mitigation measures. This is yet another insidious effort by the Trump Administration to gut environmental laws in favor of corporate interests, with serious consequences for public health and wellbeing.”
 
Highlights from the AGs’ Comments
 
In their comments, the AGs highlight nine major flaws of the administration’s proposal: 
 
It is Not Rationally or Factually Supported — The attorneys general emphasize that the proposed rule “lacks sound rationale and factual support” and focuses on “unsupported claims of shortcomings in NEPA’s implementation.” The AGs note that CEQ “provides no comprehensive data or analysis” to explain the need for such sweeping changes to NEPA regulations.
 
It is Based on a Deficient Public Process 
— The attorneys general stress that CEQ’s “woefully deficient” rulemaking process has failed to meet the Administrative Procedure Act’s (APA) standard for meaningful public participation. The AGs emphasize that a 60-day public comment period is insufficient for such a significant and complex rulemaking, and reassert their request for a 90-day extension and additional public hearings.
 
It Would Undermine NEPA’s Environmental Protection Goals — The attorneys general warn that CEQ’s proposal would undermine NEPA’s fundamental goal of driving “detailed, action-forcing consideration of environmental impacts,” and would instead render the NEPA process merely “an ineffectual box-checking exercise.” The AGs also note that CEQ’s proposal conflicts with congressional intent and decades of legal precedent, including the Supreme Court’s conclusion that NEPA is an “action forcing” statute.
 
It Would Improperly Limit NEPA’s Application to Federal Actions — The attorneys general warn that CEQ’s proposal would “unlawfully and unreasonably narrow NEPA’s application and scope” by: (1) establishing a “threshold applicability analysis” that would “provide several avenues for federal agencies to make an end run around environmental review”; (2) incorrectly redefining “significant” environmental impacts and inserting a “new, vague provision for determining the appropriate level of NEPA review”; (3) substantially expanding the use of categorical exclusions, which “threaten[s] to turn this useful tool for streamlining the NEPA process into a mechanism for undermining NEPA’s goals”; and (4) allowing agencies to proceed with certain actions that could cause significant adverse environmental impacts before completing the NEPA review process.
 
It Would Improperly Limit Discussion of Alternatives — NEPA requires that environmental analyses include alternatives to proposed actions. The proposed rule would limit consideration of alternatives outside an agency’s jurisdiction which, the attorneys general note, would needlessly eliminate potentially “creative, efficient, and beneficial alternatives.”
 
It Would Improperly Limit the Scope of Impacts — CEQ proposes to curtail considerations of direct, indirect and cumulative effects, which the attorneys general note “would reverse, without rational justification, decades of agency practice, CEQ guidance and policy, and case law.” In particular, the AGs say that limiting the evaluation of “the impacts of greenhouse gas (GHG) emissions and climate change illustrates the absurdity of CEQ’s proposal.”
 
It Would Limit Public Participation — CEQ’s proposal would remove all references to public participation and curtail requirements that government agencies share information with the public and respond to the public’s concerns. The AGs note that it also permits applicants to conduct their own environmental reviews which would “virtually guarantee conflicts of interest.”
 
It Would Undermine Government Accountability — The administration’s proposal dictates how and when the courts can process and decide NEPA cases. Among other provisions, it would require bonds and other conditions to be met in order to challenge an agency’s decision. The AGs point out that this “could systematically keep out low-income, minority, and tribal plaintiffs, exacerbating existing under-representation of those groups.”
 
It Would Increase Litigation — The AGs emphasize that despite CEQ’s stated desire to “modernize and clarify” NEPA regulations, the proposal would create “substantial uncertainty for states, the public, agencies and the courts” including by requiring that all government agencies draft new NEPA procedures within one year based on the often vague language of the proposed rule.
 
The attorneys general of Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, and Guam joined Washington, California, New York and Washington, D.C. in submitting the comments.
 
More Resources
 
The State Impact Center maintains a web page on the National Environmental Policy Act that includes the 2018 advance notice of proposed rulemaking in which the Trump administration first signaled that it would pursue a comprehensive overhaul of NEPA regulations, as well as comments filed by state attorneys general in response. In addition, the Center maintains a sortable database of AG actions, including numerous NEPA-related actions.

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About the State Energy & Environmental Impact Center
The State Energy & Environmental Impact Center (State Impact Center) is a non-partisan Center at the NYU School of Law that is dedicated to helping state attorneys general fight against regulatory rollbacks and advocate for clean energy, climate change, and environmental values and protections. It was launched in August 2017 with support from Bloomberg Philanthropies.
For more information, visit our website