ELI Primary Menu

Skip to main content

Cutting the NEPA Rules’ Gordian Knot

Tuesday, December 22, 2020
James M. McElfish, Jr.

James M. McElfish, Jr.

Senior Attorney; Director, Sustainable Use of Land Program

National Environmental Policy Act (NEPA) administration is in a serious tangle, given new Trump Administration regulations, the long-standing procedures administered by scores of federal agencies, and inconsistent environmental review obligations depending on various dates. This knot, like the legendary knot of King Gordias, is not easily unraveled. But it is not impossible.

Knotted ropeActing pursuant to Executive Order No. 13807, Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure, the Trump Administration’s Council on Environmental Quality (CEQ) recently rewrote the governmentwide regulations implementing NEPA. CEQ published its final rule on July 16, 2020, effective September 14, 2020. The rule provides that it is applicable to any NEPA process “begun” after that date and immediately preempts all “inconsistent” agency procedures. The rule also directs all federal agencies, by September 14, 2021, to propose new agency procedures to implement the new rule and to eliminate inconsistencies with the rule. CEQ notes that there are 85 federal agencies that have such procedures and that must engage in this prescribed rulemaking to conform to the Trump rule.

This creates a serious set of problems. Federal agencies have procedures, training courses, guidance manuals, contracts, and integration of NEPA with other reviews, grounded on 40 years of underlying and stable NEPA regulations. But the new rule, among other things, drops analysis of indirect and cumulative impacts, removes the underpinnings for environmental justice analysis, eliminates consideration of impacts not within the jurisdiction of the lead agency, redefines what is a “major federal action” subject to NEPA, removes conflict of interest prohibitions, and creates new presumptions and procedural requirements. Can the incoming Biden Administration deal with the new rule with its sweeping and various preemptive effects, especially if the new Administration prefers to chart a different course closer to the long-standing regulations?

At least four federal district court challenges have been filed seeking to void these regulations, but currently face issues of ripeness, standing, and scope of remedy. If the incoming Administration desires to revisit these regulations (and assuming use of the Congressional Review Act is unavailable), then administrative rulemaking processes will need to be considered.

As the Trump Administration found, it can be difficult to defer or suspend effectiveness of regulations that have already gone into effect while they are being considered for revision. But the 2020 NEPA rule may present a different sort of case for deferral. For one thing, it applies to federal administration rather than regulation of private conduct, as the current Department of Justice has argued in advancing standing and ripeness defenses to challenges to the new rule. NEPA Section 102(2) makes federal agencies responsible for environmental impact review. Their performance of these responsibilities has been guided by the regulations, court decisions, administrative decisions, and their agency-specific implementing procedures. But long-standing agency NEPA procedures must now operate in uncertain operational alliance with the new definitions and substantive provisions of the new rule.

At the same time, federal agencies continue to conduct NEPA reviews that were commenced prior to September 14, applying the 1978 NEPA rule and their existing procedures. These reviews include major construction, defense, infrastructure, oil and gas, wind energy, highway projects, rulemakings, and other actions. Meanwhile, the 2020 rule instructs them to scrap their existing procedures (and associated manuals, guidance documents, contract provisions) and to propose conforming procedures by next fall. 40 C.F.R. 1507.3(b)(2020). This is a recipe for confusion, conflict, and uncertainty.

One approach the incoming CEQ leadership may wish to consider would be to publish (with notice and comment) an interim final rule to defer the applicability of the 2020 NEPA rule to federal decisions until the agencies have had time to act on and finalize their NEPA procedures. During the deferral period, the agencies would be instructed to implement their existing NEPA procedures and to operate according to the 1978 rule. This is, in fact, how agencies are continuing to carry out ongoing NEPA processes that were commenced prior to September 14. Such an administratively rational approach would be consistent with the approach CEQ took in promulgating the original 1978 NEPA rule. That rule, published in the Federal Register in November 1978, was given an effective date of July 30, 1979, co-extensive with the date CEQ prescribed for adoption of agency procedures in order to avoid conflict or confusion. 40 C.F.R. 1506.12, 1507.3(a)(1978).

Such an approach might be adopted in tandem with a government request for stay of the litigation challenging the 2020 rule, and/or in connection with settlement or partial settlement of such litigation. Moreover, unlike retroactive suspension or deferral of the effectiveness of regulations that have created reliance interests and private compliance expenditures (of which courts are particularly solicitous), a deferral of the NEPA rule would be a deferral chiefly of processes and procedures that define the duties of federal agencies—regulations issued in reliance on authority based almost entirely on the Executive Order issued by President Carter in 1977. Although the 2020 rule cites the Environmental Quality Act of 1970 as an additional authority for rulemaking, that Act doesn’t itself authorize rulemaking but directs CEQ to “assist”’ in coordinating activities of federal departments and agencies.

Especially if directed by a new Executive Order, CEQ is likely to be able to defer the effective date of the 2020 rule in order to improve and make coordination consistent. During this period, it may undertake a full rulemaking to address the perceived deficiencies of the 2020 rule—while not saddling federal agencies with divergent commands and inconsistent processes based on the commencement dates of their various NEPA analyses.

In the interim, this would also obviate the loss of the only governmentwide guidance for environmental justice, which was based on the 1978 CEQ regulations, and would allow the continued analysis of climate and other cumulative impacts during a more thorough consideration of what sort of NEPA modernization rule might be desired by the incoming Administration.

All blog posts are the opinion of its author(s) and do not necessarily reflect the views of ELI the organization or its members.