State Attorneys General Weigh in to Defend National Environmental Policy Act Reviews

Washington, D.C. — Coalitions of attorneys general filed two sets of comments yesterday in response to separate proposals by the U.S. Forest Service and the Council on Environmental Quality (CEQ) related to the implementation of the National Environmental Policy Act (NEPA).

“In the face of intensifying climate impacts, growing threats to public lands, and accelerating biodiversity loss, preserving and reinforcing NEPA reviews should be a top priority for any administration. Instead, this administration is pushing in the opposite direction,” said David J. Hayes, Executive Director of the State Energy & Environmental Impact Center. “Arbitrarily exempting actions from review, cutting the public out of the process and continuing to ignore the harmful impacts of greenhouse gases contravenes both the spirit and the letter of NEPA, as the attorneys general make very clear in their comments.”

Council on Environmental Quality Draft Guidance

A coalition of 19 attorneys general, co-led by California Attorney General Xavier Becerra, New York Attorney General Letitia James, Washington Attorney General Bob Ferguson and District of Columbia Attorney General Karl Racine, filed comments criticizing the Council on Environmental Quality’s draft guidance on the consideration of greenhouse gas emissions in federal agencies’ NEPA review processes.

“This reckless guidance by the Trump Administration leads agencies to ignore the climate crisis, the most pressing environmental challenge of our time,” said Attorney General Becerra. “We’re reminding President Trump once again: if you try to backslide on the safeguards protecting our nation’s environment and put polluters in the driver’s seat, we will hold you accountable.“

In March 2017, President Donald Trump issued an executive order directing CEQ to withdraw its previous guidance, which was finalized in 2016. That guidance confirmed that NEPA requires that federal agencies undertake a thorough evaluation of potential climate change-related impacts for projects that trigger direct or indirect greenhouse gas emissions or that otherwise have potential climate change-related impacts.

In their comments, the attorneys general warn that CEQ’s new draft guidance “does not take the threat of climate change seriously” and highlight numerous conflicts between the guidance and the text of the law — including its fundamental failure to provide clarity to federal agencies, its “one-sided approach” to cost-benefit analysis, and the absence of consideration of climate adaptation and resiliency. The attorneys general conclude that the guidance ignores NEPA’s purposes and statutory requirements and instead “largely identifies opportunities for — and indeed appears to encourage — agencies to avoid adequately assessing [greenhouse gas] emissions and climate impacts”

The attorneys general of California, Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Mexico, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Washington, D.C. joined in filing the comments.

Forest Service Proposed Rule

California Attorney General Xavier Becerra led a coalition of five attorneys general in filing comments objecting to a proposed rule that would dramatically scale back environmental impact analysis and public input requirements for many actions undertaken by the U.S. Forest Service.

“This proposed rule is a blatant attempt by the Trump Administration to rip out the backbone of our conservation laws in order to fast-track commercial projects on our National Forest land,” said Attorney General Becerra. “These treasured public lands must be preserved for the safety and use of future generations, not stripped for profit. We will not stand idle as environmental protections of our National Forests are sidestepped and the public is cut out of the process. We’ll fight to protect our National Forests, our environment, and the people of California.”

As the attorneys general note, while the Forest Service framed its proposal as part of an effort to address the rising threat of wildfires, the proposed rule “does not consider or account for a primary cause of the increased intensity of wildfires – climate change.” The coalition warns that the proposal “recklessly expands the number of categorical exclusions” exempting Forest Service actions from NEPA review, and simultaneously eliminates scoping requirements for such actions. In other words, the proposal would allow the Forest Service to undertake actions with potentially significant impacts “under the presumption that environmental analysis is unnecessary,” while eliminating the opportunity for the public to contest such a presumption.

The proposal would also eliminate the presence of “sensitive species” — those “for which population viability is a concern” as determined by the Forest Service — from the list of extraordinary circumstances barring the use of categorical exclusions. The attorneys general also emphasize that the Forest Service “has failed to provide any reasoned basis” for proposing to eliminate the requirement that a full environmental impact statement be prepared for any activity that may alter the unique and fragile “undeveloped character” of potential wilderness and inventoried roadless areas.

The attorneys general of Colorado, Illinois, New York and Vermont joined California in filing the comments.

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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.