The Trump Administration issued a new rule in July that will sharply limit community participation in the environmental decision-making process on projects subject to review under the National Environmental Protection Act (NEPA). While these new regulations modernize and streamline the NEPA review process in some welcome respects, they also narrow the scope of NEPA reviews–exempting pipelines, large-scale logging operations, waste incinerators, highways, and other federal actions from NEPA review entirely. The regulations, which became effective in September 2020, also redefine certain review parameters that significantly limit or eliminate community involvement.
The NEPA review process requires federal agencies to take a “hard look” at environmental impacts, leading to better outcomes and protecting communities from negative environmental consequences. However, under the new rule, communities can no longer rely on NEPA’s public engagement process and may need to provide their own resources to ensure that federal agency decisions do not negatively impact them or their environment. These are the same underserved communities that have long been exposed to a disproportionate share of environmental pollution. In fact, Black Americans are 75% more likely than other Americans to live near facilities that produce hazardous waste and expose residents to long-term air pollution and water contamination.
Signed into law on January 1, 1970, NEPA has long addressed the environmental impact of federal agency actions. Under the 50-year-old statute, which has never been amended and has had no significant change to applicable regulations until now, federal agency actions require environmental reviews before granting permits for the construction of projects. In the past, these environmental reviews have included pipelines, power plants, buildings, highways, bridges, and other publicly owned facilities, as well as projects on federal lands. Before proceeding with one of these projects, a federal agency must assess under NEPA the environmental, social, and economic effects of the proposed federal action through an environmental impact assessment and provide the public the opportunity to weigh in on those decisions. The new rule significantly curtails that opportunity.
Narrowed Scope Restricts Public Involvement
In addition to narrowing the scope of activities subject to NEPA review, the new regulations also impact communities under the redefinition of the “effects” that must be considered in NEPA evaluations. The new definition excludes cumulative and indirect effects and impacts and requires federal agencies to consider only direct effects and impacts that are “reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives.” Federal agencies will not consider impacts that “are remote in time, geographically remote, or the result of a lengthy causal chain.” Previously, agencies were required to consider cumulative impacts, defined as “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions,” and indirect effects defined as “caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable.” Under the new definition, climate change impact analyses may be limited or excluded, further negatively impacting vulnerable communities.
Blue Access LLC filed comments in March 2020, on the proposed regulations implementing NEPA. In the comments, we noted that while we support a timely and streamlined review process, including time and page limits, we are concerned about aspects of the regulations that reduce due diligence and restrict public involvement. Those provisions impose environmental and economic threats to communities, particularly low-income and vulnerable communities. These concerns remain.
New Regulations Ignore EJ Initiatives
Public participation has always been a cornerstone of NEPA, giving citizens the ability to engage in public discourse to protect their communities from the environmental consequences of federal agency actions. The right to comment on the environmental impacts of federal agency actions is particularly important to advance environmental justice in an active and meaningful way. Federal agencies are encouraged to include environmental justice methodologies in NEPA reviews. By eliminating discussions on cumulative and indirect impacts, the new NEPA regulations ignore environmental justice initiatives and remove opportunities for communities to meaningfully engage at the local and federal level.
A lawsuit challenging the rule was filed in federal district court by 23 states, and others have been filed by various environmental groups. The lawsuits seek to invalidate the rule on the basis that it is procedurally, administratively, and substantively outside the authority of NEPA as intended by Congress. That litigation is ongoing. It also remains to be seen how the incoming Biden Administration may address the issues related to the new rule.
The question of whether NEPA needs some reshaping to better support projects, including renewable resource facilities sorely needed to address environmental issues, is a good one. But the changes made to the scope of review through this new rule, limiting public involvement in project considerations, is contrary to the purpose of NEPA.