On January 10, 2020, the White House Council on Environmental Quality published a notice of proposed rulemaking reflecting changes to the regulations implementing the National Environmental Policy Act ("NEPA"). If adopted, the proposed changes would overhaul rules that have been in effect for nearly 40 years, streamlining NEPA's environmental review process and narrowing how, and indeed whether, federal agencies consider the effects of climate change in their review of energy and infrastructure projects.
NEPA requires agencies to provide detailed assessments of all major federal actions that have a significant "effect" on the human environment. Current rules define "effect" as the direct, indirect, and cumulative impact a project will have on the environment. This expansive definition requires agencies to consider a wide array of environmental consequences connected to proposed activities. It also increases litigation risk by permitting litigants to challenge environmental impact statements and environmental assessments on the basis that they failed to consider certain environmental effects. In addition, it permits agencies to consider the effects of greenhouse gas ("GHG") emissions caused by proposed energy and infrastructure projects when assessing the effect of such projects on the environment.
The Trump Administration's proposed rule would narrow this definition of "effect" such that an agency will be required to assess only environmental effects that are "reasonably foreseeable." Accordingly, an agency would consider GHG effects that have "a reasonably close causal relationship" to the proposed action only. In addition, the Administration's guidance directed that agencies should consider GHG emissions only when "those emissions [are] substantial enough to warrant quantification." Thus, by redefining "effect," the proposed rule would significantly limit the scope of environmental reviews of planned energy and infrastructure projects. The new regulations also would limit the types of projects to which NEPA review applies, by specifying that private projects with minimal federal funding or minimal federal involvement are not "major federal actions" and therefore fall outside the scope of NEPA review.
On one hand, the proposed rule is pragmatic. It will shorten the environmental review process and improve coordination between local, state, and federal permitting agencies. Proponents emphasize that these changes will benefit energy and infrastructure projects by reducing costs and delays associated with lengthy NEPA reviews, arguably fast-tracking all energy projects, including solar, offshore wind, and hydroelectric projects.
On the other hand, the proposed rule will minimize, if not eliminate entirely, consideration of the climate change impacts of proposed energy and infrastructure projects. In doing so, the proposed rule strikes at the very heart of NEPA, which was designed to mitigate the environmental harm associated with the development of such projects, causing critics to argue that the proposed rule is essentially a handout to polluters.
While the proposed rule will be open for comments until March 10,2020, interested parties have already requested additional time to comment, and the comments will certainly number in the thousands, if not more. Accordingly, the Trump Administration will be racing against the clock to get the final rule published before the November election.
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