CEQ and Permitting Reform
The enactment of NEPA 2.0 presents a golden opportunity for the agency.
Within the recent debt ceiling law, Congress extensively revamped NEPA, the law governing environmental impact statements. An obscure White House agency, the Council on Environmental Quality (CEQ), can have the primary opportunity to shape the interpretation of the brand new language. Much of the language in the brand new law is poorly drafted or vague, making CEQ’s role all of the more vital. This offers CEQ the chance to reform permitting for infrastructure projects while retaining the virtues of the prevailing process.
Interpreting the brand new law goes to be a challenge for agencies and courts. I’ve posted repeatedly, most recently last week, concerning the poor drafting of the statute. Courts are going to be searching for assist in making sense of the statute despite the drafting glitches. Even other than the glitches, the brand new provisions are sometimes vague, as I’ll explain below. Just by virtue of its unique ability to supply a comprehensive interpretation of the brand new provisions, CEQ’s regulations can provide a focus for courts.
Furthermore, for the reason that Andrus decision in 1979, the Supreme Court has made it clear that CEQ’s regulations are entitled to “substantial deference” by courts. Andrus was decided well before Chevron, so this deference rule ought to be unaffected even when the now-controversial Chevron rule is overturned. Under deference principles that long-preceded Chevron, an agency’s initial interpretation of a latest statute is entitled to particular deference. That principle applies to the brand new language added to NEPA this yr.
As I said earlier, much of the brand new language is vague. Listed below are a number of vital examples:
- In complying with the statute, an agency must “make sure the skilled integrity, including scientific integrity, of the discussion and evaluation in an environmental document.”
- An agency is “not required to undertake latest scientific or technical research unless the brand new scientific or technical research is crucial to a reasoned selection amongst alternatives, and the general costs and timeframe of obtaining it should not unreasonable.”
- The amendments allow the agency to delegate preparation of the impact statement to an organization that’s applying for a permit. Nevertheless, “such agency may provide such sponsor with appropriate guidance and assist within the preparation. The lead agency shall independently evaluate the environmental document and shall take responsibility for the contents.”
- A programmatic impact statement could be applied to latest government actions for five years “without additional review of the evaluation within the programmatic environmental document, unless there are substantial latest circumstances or details about the importance of adversarial effects that bear on the evaluation.”
Agencies might have assist in deciding what is required to ensure “scientific integrity,” when latest research ought to be considered “needed to make a reasoned selection”, what an “independent evaluation” of an applicant’s impact statement requires, and when latest information ought to be considered “substantial.”
One other key issue that shouldn’t be addressed by the brand new amendments in any respect is public input, which is mentioned only normally terms by the amendments. This might be especially vital in cases where responsibility has been delegated to an organization looking for a permit. Furthermore, the amendments call for a lead agency to administer the method when multiple agencies are involved. But unless this is completed well, it could simply add a layer of bureaucracy and foment conflict between agencies. I even have my doubts about how effective the brand new deadlines created by the amendment might be in speeding up the method. Even in the event that they do work, there’s a risk that rushing to fulfill deadlines will simply lead to a shoddier output that might be overturned by the courts.
In interpreting the statute, CEQ might want to balance the necessity to speed up permitting, especially for clean energy infrastructure, versus the standard of the environmental review and the necessity for public input. CEQ is much more expert on the realities of the method than any court. With CEQ’s help, the 2023 amendments may yet be a hit. Otherwise, they could simply muddy the waters, impairing environmental reviews without doing much to realize their goal of a more efficient permitting process.