Changes Proposed to NEPA Rules

By John McFerrin

Council on Environmental Quality has proposed changes to the regulations on how the National Environmental Policy Act is implemented.  If the changes become final, they would limit the scope of the Act, potentially limit public participation, and limit the duty of the agencies to look at cumulative impact of decisions.  Taken as a whole, the changes would dramatically reduce the effectiveness of the National Environmental Policy Act.

The proposed changes do not repeal NEPA.  They just limit its scope.

Background stuff (if you’re in a hurry you could skip it; the rest of the story would still make sense)

The National Environmental Policy Act is the oldest of the raft of environmental laws that were passed in the 1970s.  Before the 1970s, there was little federal environmental law.  Absent some restrictions imposed by state law, companies were free to bulldoze, pollute, allow rivers to catch on fire, etc. pretty much at will.  The National Environmental Policy Act was the beginning of the effort to change all that.  When President Nixon signed the Act, he said it would help as, “America pays its debt to the past by reclaiming the purity of its air, its waters, and our living environment.”

The National Environmental Policy Act (NEPA) is a short statute, only six pages long.  It has been filled out by fifty years of regulations and court interpretations.  Although it is routinely part of court cases, there has been no major Council on Environmental Quality regulation change since 1978.

NEPA does not directly prohibit pollution.  It assumes that we would not intentionally degrade our environment, that if we knew an action we were considering would do damage we would not go ahead with that action.  Instead of prohibiting pollution, it requires that we study the environmental effects of proposed actions.  As it has been applied for the last fifty years, it requires that we take a hard look a possible environmental consequence.  Now with the proposed changes, the look would not be as broad and would not have to be all that hard.

What the proposed changes are

  • Limits the number of proposed actions that would be subject to NEPA review.  Something as big as the federal government makes a bazillion decisions every day.  It could not study the environmental impact of each one.  That is why NEPA is limited to major federal actions.  The proposed rules would narrow the actions which would require NEPA review.
  • Impose arbitrary time limits for NEPA review.  Rushing through the review will in many instances result in a faulty review.  “Haste makes waste” did not work its way into cliché status for nothing.  Its corollary is “waste makes litigation.”  Lawyers feast on agency decision making that was rushed through, ended up challenged in court, and had to be done over again.  The result of this change may be that NEPA review will take longer.
  • Prohibit the gathering of new scientific and technical information to inform analysis.  In undeveloped areas, there would often be limited information.  To be effective, the NEPA process often needs to collect new data.
  • Allow public hearings and meetings to be conducted electronically.  This is particularly damaging in West Virginia where many rural areas do not have access to high speed internet. (The proposal is not a coronavirus adaptation to discourage in person interaction.  It will exist after the coronavirus difficulty has passed and will still be objectionable).
  • Prohibits consideration of the cumulative impacts of proposed actions.  This effectively eliminates consideration of the impact of a proposed project on climate change.  This is a reversal of a 1997 Guidance by the Council on Environmental Quality which said “Generally, it is also critical to incorporate cumulative effects analysis into the development of alternatives for an EA and EIS. Only by reevaluating and modifying alternatives in light of the projected cumulative effects can adverse consequences be effectively avoided or minimized. Considering cumulative effects is also essential to developing appropriate mitigation and monitoring its effectiveness.”   Since climate change is a world wide phenomenon that results from the cumulative actions of many actors, this could effectively prohibit consideration of climate change.
  • Allows applicants to prepare environmental analysis themselves.  Nothing requires the agency to assure that the environmental analysis meets NEPA requirements.  If applicants are allowed to prepare their own analysis there is great danger that “a man hears what he wants to hear, and disregards the rest” (Simon, Paul).  It is not unlike putting the bear in charge of the beehive.  Note: The Highlands Voice is sick to death of the fox and henhouse cliché.  Through crowdsourcing our readers, we have accumulated a list of alternatives.
  • Allows some activity to proceed before the NEPA process is complete.  The whole point of NEPA is to consider alternatives to a proposed action, including the option of not going ahead.  If projects may move forward before the NEPA process is complete, it becomes extremely unlikely that any other alternatives will be considered.
  • Eliminates the requirement that all reasonable alternatives be considered.  NEPA was designed to aid decision making, to encourage us to consider alternatives, including the alternative of doing nothing.  In its most cynical form, it is a process that we must plod through so we can affirm a previously chosen result.  This change pushes us toward this cynical result.  A NEPA process that does not consider alternatives is no longer one that helps us choose the best course of action.  Instead, it is a process that validates a pre-determined decision, regardless of environmental consequences.

Why It Matters in West Virginia

            Nobody knows for sure how this will matter in West Virginia because nobody knows what will come along to potentially threaten our woods and waters.  Had these proposed rules been in effect in the past we probably would not have had:

  • Programmatic review of the environmental impact mountaintop removal mining in southern West Virginia.  In the late 1990s and early 2000s the Environmental Protection Agency undertook a study of mountaintop removal mining in southern West Virginia.  It gathered a lot of data which demonstrated the dramatic environmental effects of disposing of mining waste in nearby streams.  While the Environmental Protection Agency did not move to halt the practice (For an explanation, see the entire economic and political history of West Virginia), it did provide a plethora of data on the practice.
  • Protection of endangered fish species in West Virginia. Because of findings during the NEPA process, the US Forest Service withdrew a logging proposal in the Monongahela National Forest after determining that the project would significantly impact the endangered Candy Darter. Without NEPA, this project may have moved forward and the sensitive fish species would have moved closer to extinction.
  • Protect the endangered Cheat Mountain Salamander. During the NEPA process, the Atlantic Coast Pipeline was found to threaten the salamander.  The pipeline was then rerouted to protect the critical habitat of this important species that is found nowhere else on earth. 

            The West Virginia Highlands Conservancy has joined in with other groups in opposing these rule changes.