Finetuning the Recent NEPA Rules
CEQ’s proposal is nice, nevertheless it could possibly be made even higher.
In Monday’s post, I praised the CEQ’s proposed latest NEPA regulations. They need to streamline the method without compromising protection of the environment or environmental justice. I do have some suggestions for improvement, nonetheless, that are detailed below.
Beyond my specific suggestions, I also hope that CEQ would view the brand new NEPA regulations as the start reasonably than the tip of its efforts. Agencies have made their very own attempts to streamline their processes, partly under statutory mandates applying to specific forms of government projects. Agencies may even be experimenting with alternative ways to streamline other parts of their process. CEQ should develop guidance about best practices from those agency experiences, possibly teaming up with the Administrative Conference on the research.
One vital query is whether or not the strategy of producing environmental reviews could possibly be made more useful to agency decision making . Greater use of programmatic impact statements could possibly be a useful gizmo for agencies to think more strategically about their programs. Ideally, the NEPA process could also function a hub for project decisions, coordinating application of other environmental statutes to a -project and helping to develop higher project designs. In that way, agencies could use a streamlined NEPA process to assist streamline the choice process as an entire.
With that, let me turn to an in depth list of suggestions about improvements within the proposed regulations. These suggestions don’t call for dramatic changes. Agencies generally aren’t presupposed to make unexpected changes in regulations without providing additional opportunity for comment. For that reasons, any changes within the proposal would probably need to be incremental at this point.
Specific Comments on the Proposed Regulation
These comments deal with the best way that the proposal deals with the recent amendments to NEPA within the BUILDER Act, which was a part of the debt ceiling law.
The prologue to the regulations.
There are three general matters that CEQ might want to deal with within the prologue.
Continuity. At the very least from the portions of the legislative history that I actually have read, supporters of the BUILDER Act insisted that it was meant to streamline the method reasonably than to diminish the protection for the environment provided by NEPA. Much of the language of section 102(2(D) itself was reenacted, presumably carrying with it settled interpretation of terms reminiscent of “significant”. “environmental,” and “proposal.” NEPA’s goals and policies are reaffirmed in section 105. It’s price making this point since some advocates will little doubt claim that the revisions were more radical than they really were.
Textualism. Given the Supreme Court’s embrace of textualism, wherever possible CEQ should tie its views to the precise language of the present version of NEPA. Recourse to dictionaries wouldn’t be amiss. This may increasingly seem to be a lame, formulaic approach to interpreting a law, nevertheless it’s the one the Justices have adopted.
Deference Aspects. Finally, the Court’s view about deference to agency interpretations of statutes is in flux. It is just not clear to me whether CEQ regulations qualify for Chevron deference under Mead, because Congress didn’t delegate the ability to make rules with the force of law. Be that as it could, Chevron’s future is doubtful. CEQ should subsequently orient itself toward the Skidmore aspects for deference, which emphasize the degree of the agency’s care; the agency’s consistency, formality, and relative expertise; and the persuasiveness of the agency’s position. Timing is one other relevant factor: long-standing agency interpretations get more deference, as do interpretations made soon after the passage of a statute. That argues for extra deference toward CEQ’s interpretation of the brand new language added to NEPA this yr.
NEPA Section 101.
The proposal’s inclusion of environmental justice concerns in its evaluation will undoubtedly be challenged. In defending the relevance of those concerns to NEPA, CEQ will want to reference § 101(c). That subsection says that “Congress recognizes that everyone should enjoy a healthful environment.” That principle clearly doesn’t create any enforceable rights nevertheless it does provide support for the view that special attention to groups with the least healthy environments could be appropriate.
NEPA Section 102.
Section 102(2)(D) says that an agency must “make sure the skilled integrity, including scientific integrity, of the discussion and evaluation in an environmental document.” Scientific integrity was an actual problem within the last Administration. It may be an actual problem if agencies make the most of the choice of delegating much of the duty of writing review documents to project applicants. The Biden Administration has featured executive orders and an EPA policy elaborating on the concept of scientific integrity and ways of protecting it. It could be useful if the regulation adopted relevant language from those documents or at the least referenced them.
Section 102(2)(E) also says that the agency must “make use of reliable data and resources.” There are certain to be efforts to take advantage of this language to require an unrealistic level of reliability, which could then be used as a basis for excluding vital environmental issues where the scientific basis is less well developed. There could also be limits, for instance, on information or available modeling about ecological issues, reminiscent of impacts on rare species. CEQ will want to borrow language from cases involving statutes requiring the usage of the perfect available science, where courts have recognized that sometimes that best available evidence should still be lower than ideal.
NEPA Section 105.
Despite broad language in some Supreme Court opinions that NEPA is solely procedural, this section codifies CEQ’s longstanding position that NEPA’s environmental policies complement an agency’s statutory authority. This can be a point price making. The implication is that agencies have authority to think about environmental aspects except where clearly precluded from doing so by their governing statutes. Failure to think about those aspects under consideration could possibly be considered arbitrary and capricious.
NEPA Section 106.
106(a)(4). This subsection exempts agencies from doing environmental reviews for “a nondiscretionary motion with respect to which such agency doesn’t have authority to take environmental aspects into consideration in determining whether to take the proposed motion.” This exemption reinforces what I believe is the right interpretation of section 105, which makes environmental aspects relevant to agency decisions except when the agency’s governing statute clearly precludes doing so.
106(b)(2) says that an environmental impact statement is just not required when the importance of any environmental impacts is unknown. CEQ should make it clear that “unknown” is just not similar to “uncertain,” and applies only when uncertainty is so profound that the agency is unable to make a reasoned skilled judgment concerning the significance of foreseeable impacts and when latest obtaining latest information to resolve the uncertainty is just not feasible.
106(b)(3) limits the duty of the agency to acquire latest information when making threshold determinations under NEPA to situations where doing is required for a reasoned alternative between alternatives, unless the prices of doing so could be unreasonable. OIRA’s proposed revisions of circular A-4 address how agencies can determine the worth of recent information. It is likely to be useful to cross-reference that. Also, agencies should take note that under the APA, the proponent of an agency rule or order has the burden of proof. If the agency cannot make a reasoned determination that the proposed motion is best than the alternatives, it could be required to reject the proposal. placing an obligation on project applicants to develop relevant information.
NEPA Section 107.
Earlier statutes. This section is designed to make the NEPA process faster and more efficient. There are already statutes doing so in specific areas reminiscent of transportation, water projects, and transmission lines in national interest zones. CEQ will want to give its view, at the least within the prologue, about whether latest section 107 affects agency obligation under those other laws. The reply might be no, because there are presumptions that a later statute doesn’t repeal an earlier one and that more specific statutes prevail as against more general ones. This must be clarified.
Section 107(f). This statute allows agencies to delegate the drafting environmental documents to project applicants. There’s an obvious -potential for conflicts of interest. It could be helpful to position some guardrails in place, or at the least to elaborate some general principles to observed. The prologue suggests that it’s as much as agencies to ascertain regulations on this area, not CEQ. CEQ should at the least address the agency’s process for creating such regulations — as an illustration, by ensuring that CEQ has the chance to review such proposed regulations. I’m not altogether convinced by the argument that CEQ’s role is proscribed because Congress gave rule-making power to agencies. Congress generally gives rule-making power to agencies, but that has not prevented OIRA from exercising oversight over the method and providing detailed guidance. Perhaps CEQ should issue a separate guidance document about agency implementation of section 107(f).