Last month, the Council on Environmental Quality (CEQ) proposed a rule that would considerably change the implementing regulations of the National Environmental Policy Act (NEPA) (ELI’s guide to the proposed regulations is available here). NEPA requires that major Federal actions undergo environmental review before being carried out. The review process involves examining environmental impacts and alternative actions, consulting interested parties, and identifying mitigation; and, while procedural in scope, it aims to ensure that environmental considerations are incorporated in government decisionmaking.
Over the past decade, numerous coastal restoration projects in the Gulf of Mexico, many of which are funded and managed through programs created in response to the Deepwater Horizon oil spill, have undergone various types of NEPA review. The following aspects of the proposed regulations could affect coastal restoration efforts in the Gulf if adopted:
1.Narrowing the definition of effects would affect whether actions require environmental assessments (EAs) or environmental impact statements (EISs), and their scope;
2. Expanding categorical exclusions (CEs) could reduce the number of EAs and EISs prepared;
3. Specifying that agencies shall use existing data may discourage agencies from collecting new data for their analyses; and
4. Requiring agencies to certify their own consideration of “alternatives, information, and analyses” raised in public comments would limit legal challenges based on the adequacy of EISs.
Environmental effects
First, the new regulations would limit the environmental effects that agencies must consider. This affects two main parts of NEPA review. First, these effects form the basis of agency determinations whether proposed actions will have significant environmental impacts and, consequently, the requisite level of environmental review (CE, EA, or EIS). Second, this proposal would reduce the number and kinds of effects of the proposed action and alternatives agencies must analyze in EAs and EISs before reaching their final decisions.
Under current regulations, agencies are required to consider direct, indirect, and cumulative effects (§§ 1508.7-8, 1508.25(c), 1508.27). The new regulations would only clearly require agencies to consider direct effects; and would exclude even direct effects not within their jurisdiction to control[1] or that would happen independently of their actions (proposed § 1508.1(g)). Consequently, agencies would no longer be required to consider most indirect nor any cumulative effects.
In the Gulf, where agencies evaluate actions ranging from sediment diversions and habitat restoration to petrochemical plants, indirect and cumulative effects are particularly relevant. While the effects of one action may not rise to a level of significance in isolation, they may when considered in combination with conditions or actions that have, are currently, or will take place in the area in the future. Considering cumulative effects can help ensure that potentially polluting operations are not developed in communities that are disproportionately impacted by environmental harms, for example. Further, considering cumulative impacts can ensure that the effects of a single restoration project on fisheries are assessed in the context of other existing actions and conditions also affecting those resources.
Categorical exclusions
The regulations could also increase the number of actions categorically excluded from requiring EAs and EISs. Under current regulations, agencies identify types of actions that do not “individually or cumulatively” have significant environmental impacts and thus do not require further environmental review, so long as no extraordinary circumstances render their impacts significant (§ 1508.4).
The revised regulations could expand the use of CEs in three ways. First, agencies could develop more CEs because they would no longer have to consider cumulative (or indirect) effects when evaluating significance (proposed § 1501.4(a)). Second, agencies would be authorized to use CEs listed by other agencies, further expanding the number of potentially applicable CEs (proposed § 1506.3(f)). Third, agencies could categorically exclude actions despite there being extraordinary circumstances so long as the circumstances were mitigated such that no significant effects would result (proposed § 1501.4(b)).
Multiple agencies categorically exclude certain coastal restoration-related actions, including members of the Gulf Coast Ecosystem Restoration Council. Under the revised regulations, more CEs would be available to agencies, both in the coastal restoration context and otherwise. The wider use and misuse of CEs could allow actions to undergo less thorough environmental review than would normally be expected.
Data collection and time limits
The revised regulations may allow agencies to rely exclusively on existing data. Agencies would be required to use “reliable existing data and resources” and could, but are not required to, conduct “new scientific and technical research” to support their decisionmaking (proposed § 1502.24). Proposed time limits for preparing EAs (one year) and EISs (two years) could restrict opportunities for data collection, particularly if these require fieldwork. However, agencies might be able to extend project-specific time frames for this purpose based on the complexity of the analytic technique used or availability of information pursued (proposed § 1501.10).[2] Proposed § 1502.22 also requires agencies to seek “incomplete or unavailable information” so long as the costs of doing so are not unreasonable.
In the Gulf, where agencies are considering innovative restoration techniques for complex and changing ecosystems, the collection and use of new data is relevant for designing effective projects. Ongoing research conducted through the Gulf of Mexico Research Initiative (GoMRI) (concluding this year), the National Oceanic and Atmospheric Administration (NOAA) RESTORE Act Science Program, and other studies funded in response to the Deepwater Horizon oil spill, for example, seeks to improve understanding of different aspects of the Gulf. Allowing agencies to rely on existing data, even if outdated or less relevant than what may be presented in a forthcoming study, could limit restoration progress by preventing projects from being optimally designed. Further, the time limits proposed for EAs and EISs may discourage agencies from undertaking new studies or waiting for their results.
Agency certification
The new regulations would also require agencies to summarize public comments received regarding “alternatives, information, and analyses” in a special section of their EISs, provide for public comment on the summary in both the draft and final EISs, and certify in their records of decision (RODs) that they considered all of this external information (proposed §§ 1500.3(b), 1502.17-18). If members of the public fail to comment during the designated times or with sufficient specificity, their comments would be “exhausted and forfeited” (proposed §§ 1500.3(b), 1503.3(b)). The proposal states that the certification will create “a conclusive presumption” apparently binding on the federal courts that the “alternatives, information, and analyses” were considered by the agency (proposed § 1502.18).
The certification requirement and resulting irrebuttable presumption have never existed in NEPA before, and would limit the possibility of citizens’ groups or local governments bringing legal challenges against agencies based on the inadequacy of agency EISs. Judicial review related to NEPA has been sought for actions in the Gulf, including in a recent suit brought by public interest groups against the Department of the Interior claiming it failed to adequately assess the environmental impacts of offshore oil and gas lease sales in its EISs.
Next steps
CEQ is accepting comments on its proposed rule through March 10, 2020. Depending on the outcome of that process, the final rule may also be litigated and could be delayed in court. Should the revised regulations take effect, the nature and scope of NEPA review will be more limited. Given the breadth of projects being developed in the Gulf, these changes will be of particular relevance to stakeholders interested in and affected by these actions.
[1] The revised regulations would also prevent agencies from considering reasonable alternatives not in their jurisdiction to carry out (except “when necessary for the agency’s decision-making process”) (proposed §§ 1502.14, 1508.1(z), p. 1702), which is required under current regulations (§ 1502.14(c)). This could have implications in the restoration context, for example, if a proposed action falls within the jurisdiction of the U.S. Army Corps of Engineers, and a potential nonstructural alternative with the U.S. Fish and Wildlife Service or a state, then the latter could not be considered.
[2] Under the revised regulations, unless an agency determines that a project requires more time, EAs should be completed in one year (from deciding to complete an EA to publishing a final version) and EISs in two years (from issuing the notice of intent (NOI) to signing the record of decision (ROD)) (proposed § 1501.10).