Rolling back NEPA puts clean energy progress—and public trust—at risk 

For more than fifty years, the National Environmental Policy Act (NEPA) has served as one of the United States’ bedrock environmental protections. The law requires federal agencies to consider the reasonably foreseeable environmental impacts of their activities, integrate those considerations into agency decision making, and enhance public transparency in the decision-making process, which results in an environmental review document. More recently, NEPA has been scapegoated as the primary cause of slow and expensive infrastructure development, although evidence indicates that a complex web of factors, including a lack of coordination and capacity at the federal level, play much more of a role. 

Changes from regulations to guidance create project uncertainty 

In early July, a number of agencies, including the Department of Energy (DOE), Department of the Interior (DOI), and Department of Agriculture (USDA) issued interim final rules and guidance revising their NEPA implementing procedures. This followed a directive from the White House Council on Environmental Quality (CEQ), which had rescinded its own government-wide NEPA regulations in March, to agencies to develop their own, agency-specific implementing procedures. These procedures, while varying somewhat in the details, will all limit public engagement, weaken environmental reviews, and ultimately increase risks of project uncertainty, community opposition, and delay. Clean Air Task Force (CATF) submitted comments to DOE, DOI, and USDA outlining key areas for improvement in each of these areas. 

The agencies’ new NEPA procedures are not, as CEQ’s regulations had been, binding regulations promulgated through the normal rulemaking process. Instead, by and large, the agencies issued nonbinding procedural guidance, which is not codified in the Code of Federal Regulations and can be modified or deleted at any time without receiving input from the public or Tribal governments—or even notifying them. Such nonbinding and readily changeable procedural guidance will create uncertainty for project sponsors, who will be unsure of requirements and indeed may now have differing requirements across agencies and even differences by project with which they must comply. This uncertainty will also be felt by community members, who will have to navigate a wide range of ever-changing requirements and avenues for comment and engagement.  

Changes in requirements limit public participation and technical soundness  

Although the specifics of the NEPA procedures vary somewhat by agency, there are several cross-cutting themes that CATF urges the agencies to reconsider. The interim final rules contain provisions that:  

• Weaken public participation. Meaningful public participation is critical to ensure effective and efficient review processes and is a core tenet of NEPA. Although public participation is essential to achieving those aims, NEPA updates by DOE, DOI, and USDA each rescind requirements that ensure transparency, improve project outcomes, and build community support for projects. For instance, the new agency procedures make providing draft environmental reviews for public comment entirely optional, rather than required. Not only does that keep the public in the dark, but it worsens the quality of the reviews: research shows that comments on draft reviews often result in substantive decision changes.  

• Weaken safeguards in development and application of categorical exclusions. Categorical exclusions, a form of NEPA review with limited paperwork requirements, should be established with care, sufficient public transparency and documentation, and only when there is a well-documented history of findings of no significant impacts in prior relevant environmental reviews. Under the new NEPA procedures, future categorical exclusions will be established or revised without notice and comment periods. The public thus loses the ability to meaningfully participate in defining the scope of categorical exclusions and the agencies will produce a thinner administrative record that hinders meaningful judicial review of categorical exclusion determinations when such categorical exclusions are later used. In addition, the agencies are eliminating important safeguards that prevent the use of categorical exclusions when a proposal includes “extraordinary circumstances”: proposals that impact, among others, environmental justice, climate-related effects, ecologically critical areas, or impacts to historic properties and other cultural resources may now be categorically excluded from more detailed levels of review. 

• Weaken scientific and technical analysis of impacts. The agencies’ new NEPA procedures make several definitional changes that will weaken the scientific analysis of environmental reviews. Core among these is the across-the-board removal of all considerations of environmental justice; previously, agencies were required to engage with environmental justice communities in their public outreach, incorporate environmental justice concerns into their analyses of alternatives, and consider whether a proposed action adversely affected environmental justice communities. Now, such language has been struck from every agency’s NEPA procedures. Also eliminated was any requirement to analyze “cumulative effects,” the “individually minor but collectively significant effects” of an action that result when layered over other past, present, and reasonably foreseeable actions. Cumulative effects are a particular powerful tool for assessing the effects of proposed actions on climate change, since every marginal amount of greenhouse gas emitted contributes to the global challenge, but may seem negligible at the level of the individual emitter.  

Why these changes won’t speed energy development 

Codified and binding regulations provide for transparency, accountability, consistency, and public participation, thereby benefiting both the public and developers. The change across agencies to nonbinding and readily changeable procedural guidance undermines each of those values. In addition, diminished requirements for receiving and acting upon public and Tribal input, interagency coordination, use of rigorous scientific analyses, consideration of impacts, and developing and applying categorical exclusions put all federal actions subject to NEPA at risk of community backlash, litigation, delays—and, ultimately, reduced clean energy infrastructure development.  

CATF research has identified numerous evidence-based ways to improve and streamline permitting and environmental reviews while maintaining public participation and rigorous scientific standards. These include efficiencies in the NEPA process, such as transparent and rigorous consideration of regulatory categorical exclusions, tiering of reviews, and eliminating redundancies. Meaningful reform to permitting and environmental review processes must also address the challenges caused by leadership gaps, inconsistent funding, a lack of sufficient staff with permitting expertise in agency headquarters and field offices, and insufficient coordination among federal agencies.  

The agencies’ NEPA procedures bring us further away from this improved reality while creating project uncertainty that will burden developers and communities alike. CATF will continue to advance evidence-based policies that reduce the time for review of beneficial projects, enhance the quality of environmental reviews, facilitate public participation, and provide agencies with information necessary to make informed decisions. 

Read CATF’s comment to DOE on its NEPA procedures here. 

Read CATF’s comment to DOI on its NEPA procedures here.  

Read CATF’s comment to USDA on its NEPA procedures here.