Transition Thoughts: The Presidential Transition, NEPA, and Project Review
The incoming Biden Administration intends to take many major environmental policy actions aimed at climate change, enforcement, environmental justice, and several other issues, many of which entail reversing actions taken by the Trump Administration. Companies and their environmental managers should monitor and consider participating in this contentious process. GT will be tracking these changes in key areas on our E2 Law Blog in the coming months, with this second topic featuring “The Presidential Transition, NEPA, and Project Review.”
President-Elect Biden has called for immediate attention to climate change mitigation (for example, reducing net emissions of greenhouse gases) and adaptation (for example, location of roads, buildings, and so forth in places less likely to be affected by climate change-induced extreme weather events). He has also expressly emphasized the general need for infrastructure as a vehicle for economic stimulus and increased equity.
The outgoing administration has sought to speed up and to pare down environmental reviews generally, and environmental reviews of certain infrastructure and energy projects specifically. That raises the question whether the new administration will roll back those environmental view rollbacks, or whether it will retain some of the streamlining.
Section 102 of the National Environmental Policy Act (NEPA), 42 U.S.C. 4321, imposes the most familiar requirements for environmental review of projects. A major federal action that might or might not have a significant effect on the environment must typically undergo an environmental assessment (EA) to make that determination. If the project will have a significant environmental effect, then the agency permitting, funding, or undertaking the project must prepare an environmental impact statement (EIS), often on the basis of a report prepared by the project proponent. Agencies can exclude certain categories of projects from the review, but ordinary projects must await an EIS before federal actions can proceed. While NEPA contains no substantive requirement to avoid environmental impacts, the review generally takes the form of comparing the impacts of the proposed action to no impacts, the status quo.
The sort of analysis embeds a weak form of the “precautionary principle,” the rule that one should take no action until one is convinced that the action will be safe. But what if the current condition is itself environmentally risky? In that case, the smallest environmental impact may not arise from doing nothing. Some affirmative actions may be environmentally superior to the status quo, even though they themselves entail environmental impact or risks. To take a timely analogy, there may be a risk of side effects from the coronavirus vaccines, but not taking the vaccine is surely risky and according to the experts much more so. Windfarms, solar arrays, transmission lines, raised highways, rural broadband, electric vehicle charging stations, and on and on cause environmental impacts. But if the new administration wants them quickly, it may want to avoid increasing the burden of environmental impact review on their development.
The Council on Environmental Quality (CEQ) (the White House environmental policy office) adopted new regulations implementing NEPA earlier this year. 85 Fed. Reg. 43,304 (July 16, 2020), amending 40 C.F.R. pts. 1500-1508. Individual agencies then adopt regulations that implement the CEQ rules in the agencies’ specific programs. The CEQ rules impose presumptive page limits on EISs, 40 C.F.R. § 1502.7, and presumptive time limits on their preparation and review – one year for an EA and two years for an EIS, 40 C.F.R. § 1501.10; the median time prior to those rules was, according to CEQ, 3.5 years across all agencies.
The CEQ regulations also impose limitations on the scope of exercise. An EIS should not consider cumulative impacts of multiple projects or multiple phases of a project, it should not consider impacts outside the United States, and it need not consider impacts of climate change.
The second set of scoping restrictions seem contrary to the new administration’s stated priorities. Indeed, President-Elect Biden announced nominees for EPA Administrator and CEQ Director as part of his “climate team.” But it is not clear whether the first set of changes will be rolled back. Any change to these rules, and to the implementing agency regulations, require full notice-and-comment rulemaking, and cannot be made immediately.
Moreover, these CEQ regulations have been challenged by environmental groups, Wild Virginia v. Council on Envtl. Qual., No. 3:20-cv-45 (W.D. Va. filed Aug. 6, 2020); Alaska Community Action on Toxics v. Council on Envtl. Qual., No. 3:20-cv-5199 (N.D. Cal. filed July 29, 2020); Envtl. Justice Health Alliance v. Council on Envtl. Qual., No. 1:20-cv-6143 (S.D.N.Y. filed Aug. 6, 2020), and by a number of states, California v. Council on Envtl. Qual., No. 3:30-cv-6057 (N.D. Cal. filed Aug. 28, 2020). So far, the court has denied a preliminary injunction in the Virginia case on September 11. The lawsuits complicate any effort by the new administration to leave portions of the new rules intact, both legally and politically.
However, President Trump issued a number of executive orders seeking to expedite or to circumvent environmental reviews, and those can be rescinded by President Biden relatively easily.
“Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects,” EO 13766, 82 Fed. Reg. 8657 (Jan. 30, 2017), sought to create a fast-track for review of “high priority infrastructure projects.”
“Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects,” EO 13807, 82 Fed. Reg. 40,463 (Aug. 24, 2017), required establishment of a single lead agency to coordinate environmental reviews and permitting of infrastructure projects more generally, including setting timeline goals.
“Promoting Energy Infrastructure and Economic Growth,” EO 13868, 84 Fed. Reg. 15,495 (Apr. 15, 2019), applies specifically to energy projects and requires a single point of contact for federal permitting and review. It specifically called out state reviews underlying issuance by states of water quality certifications under section 401 of the Clean Water Act, 33 U.S.C. 1341, a specific problem for pipelines and other linear structures that cross streams and wetlands. WQCs were ultimately the subject of a new regulation restricting the scope of state review and imposing stricter timelines. 85 Fed. Reg. 42,210 (July 13, 2020), adopting 40 C.F.R. pt. 121.
“Accelerating the Nation’s Economic Recovery From the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities,” EO 13927, 85 Fed. Reg. 35,165 (June 4, 2020), responded to the economic effects of the COVID-19 pandemic by declaring an emergency, and directing federal agencies to use any emergency authorities under their NEPA regulations to avoid or to streamline review of any infrastructure projects. It is an expansion on the earlier COVID regulatory relief order, “Regulatory Relief To Support Economic Recovery,” EO 13924, 85 Fed. Reg. 31,353 (May 22, 2020).
Like the CEQ NEPA regulations, each of these has a substantive or scoping component that one would expect the new administration not to like. On the other hand, we will have to wait and see what happens to the efforts to expedite and to streamline the process of environmental review.