For many communities, the NEPA process is a vital — sometimes the sole — tool they have to try to ensure their voices are heard and that environmental justice considerations are part of federal decision-making processes. Section 101 of the statute states the aim of the law simply: “to create and maintain conditions under which [people] and nature can exist in productive harmony.”
A draft proposal from the Biden Administration to update NEPA’s implementing regulations is currently open for public comment until September 29th and is worthy of your support.
What is NEPA and why is it so important?
Signed into law by Richard Nixon on January 1, 1970, NEPA stands for two simple, but revolutionary propositions: before a federal agency does something with big environmental impacts, it should consider alternatives and, before the agency makes a final decision, it should invite input from the people who will have to live with the consequences.
The statute and its implementing regulations had been stable since the late 1970s, but watching NEPA implementation recently has been like watching a long tennis rally. The Obama Administration sought to expand NEPA consideration of greenhouse gas emissions, among other changes, but then the Trump Administration sought to truncate application of the law. The Biden Administration reversed the Trump guidance, but then Congress narrowed the statute somewhat in the Fiscal Responsibility Act (FRA), a compromise made as part of the deal to raise the debt ceiling earlier this year. A refresher on NEPA and the recent political turmoil around the law can be found here.
This is an especially critical moment for robust NEPA regulations as the climate crisis worsens and the public health toll of long-standing environmental injustices is clear. Pollution from the expansion of fossil fuel projects continues to be a major challenge for communities, especially communities of color and low-income communities. In addition, two major laws–the Infrastructure Investment and Jobs Act (IIJA) and the Inflation Reduction Act (IRA)–are moving into implementation. Both will unlock enormous investments in infrastructure and clean energy development, but must be implemented in a way that protects the environment and avoids perpetuating systemic injustices of the past.
How does the Biden Administration want to update NEPA?
The Fiscal Responsibility Act, the bipartisan legislation to raise the debt ceiling that President Biden signed in June of this year, rejected many of the more extreme attacks on NEPA sought by House Republicans, but it did amend the statute, and not necessarily for the better.
Phase I of the Biden Administration rules, finalized last year by the White House Council on Environmental Quality (CEQ), focused on reversing the Trump Administration’s harmful changes. Now the Administration has published Phase II rules and is seeking public comment. The public comment period closes September 29th. (More context for this proposal from CEQ can be found here.)
The draft rules in Phase II comply with changes brought on by the Fiscal Responsibility Act and finish the job of reversing the Trump regulations. The administration is also seeking to make significant improvements to the NEPA process by better accounting for climate change, explicitly centering environmental justice, and ensuring more robust oversight.
Congress mandated earlier this year that NEPA reviews need only consider those impacts that are “reasonably foreseeable.” They also set inflexible page limits and deadlines across all NEPA reviews, and expanded situations in which NEPA exemptions apply. CEQ Chair Brenda Mallory has characterized most of these changes as consistent with current practice.
The Biden Administration’s new Phase II draft regulations seek to fully implement Congress’ intent. While these changes don’t necessarily strengthen NEPA, the Administration has little choice but to implement the law.
President Biden’s rules could strengthen NEPA
Other aspects of the proposal are more promising. The White House’s proposal expands the description of the “affected environment” covered by a planning document to include “anticipated climate-related changes to the environment.” Previous NEPA practice has allowed incorporation of general climate trends, but the requirement to consider projected climate impacts in a specific area would be an important improvement, especially as the science is clear that many of these impacts are worsening at an accelerating rate.
A later section would go a step further and require consideration of climate change-related effects not just on the affected environment but on the proposed action itself—which is an important facet of building in climate resilience into major infrastructure investments from the outset.
The same section would also require NEPA documents to consider, “the potential for disproportionate and adverse human health and environmental effects on communities with environmental justice concerns.” For the first time, the White House Council on Environmental Quality is also proposing a definition of environmental justice in the NEPA rules.
The draft proposes the following definitions, which are consistent with President Biden’s previous Executive Order:
Environmental justice means the just treatment and meaningful involvement of all people, regardless of income, race, color, national origin, Tribal affiliation, or disability, in agency decision making and other Federal activities that affect human health and the environment so that people:
- Are fully protected from disproportionate and adverse human health and environmental effects (including risks) and hazards, including those related to climate change, the cumulative impacts of environmental and other burdens, and the legacy of racism or other structural or systemic barriers; and
- Have equitable access to a healthy, sustainable, and resilient environment in which to live, play, work, learn, grow, worship, and engage in cultural and subsistence practices.
The proposed regulations would also add new, stronger requirements for monitoring and enforcing any conservation measures included in a final NEPA plan. This is another significant improvement given that many NEPA documents include promises to enact conservation measures but lack meaningful oversight once the plan is in place.
Finally, the Council on Environmental Quality released guidance in January directing federal agencies to account for greenhouse gas emissions from proposed actions through the NEPA process, including the appropriate use of the social cost of greenhouse gases. A description of that guidance can be found here. The Administration is seeking public comment on whether to formally incorporate that guidance into the NEPA regulations.
UCS welcomed the greenhouse gas emissions guidance when it was published and including it in the final version of the latest NEPA rules would be a positive step to ensure that climate impacts are appropriately accounted for in projects.
Changing the way NEPA is applied to better account for climate change, more fully assess environmental justice concerns, and require better enforcement and monitoring are overdue but welcome improvements to the regulations. The goal of productive harmony between people and nature remains both worthy and remote, particularly as millions of Americans suffer through yet another climate-fueled Danger Season. Hopefully, this latest NEPA volley will be a winner.
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