POWER March 2020 - 20

LEGAL & REGULATORY
Trump's Attempt to Bring
Sanity to a Torturous
Environmental Review
and Permitting Process
Beth Ginsberg and Max Yoklic
T
he Council on Environmental Quality (CEQ) proposed
changes to the National Environmental Policy Act (NEPA)
regulations to promote " efficient, effective, and timely "
NEPA review by federal agencies (85 Fed. Reg. 1684 / Jan. 10,
2020). The changes would radically alter what federal agencies
consider when assessing the environmental impact of agency
actions. A necessary improvement, the proposed changes
would streamline energy development projects mired by the
drawn-out, costly, and unworkable NEPA procedure. But given
remarkable opposition to the reform, whether the changes will
provide much-needed business certainty or create additional
ambiguity in the NEPA review process remains to be seen.
Congress enacted NEPA to be a bare-bones procedural statute
designed to ensure that agencies " look before they leap. "
Without dictating a substantive result, the statute requires
federal agencies to consider significant environmental consequences
of " major federal actions " (including an agency's
decision to permit an energy project and alternatives to that
project) while both informing and providing the public with an
opportunity to comment on the agency's environmental analysis.
Overly prescriptive regulations written more than four decades
ago have led to unnecessary complexity, a plethora of
litigation, and prolonged delays in both the permitting process
and project construction.
A Red-Tape Weapon
Project antagonists, and agencies opposed to energy and other
infrastructure projects, have abused the regulations as a redtape
weapon against project developments. CEQ's sweeping
changes would significantly reduce the time it takes to publish
an Environmental Assessment (EA) or Environmental Impact
Statement (EIS), reducing the significant delays that have
historically strangled commercial, energy, and transportationrelated
development. The welcome changes attempt to reign
in agencies conducting far-reaching NEPA review beyond their
" limited jurisdiction " and refocus agencies on analysis that informs
site-specific decisions.
The most important proposed change would modify the definition
of " effect. " The scope of NEPA review depends on the
" effects " of agency action. The modification would eliminate
the requirement to consider indirect and cumulative effects of
agency action, and instead limit consideration to effects temporally
and geographically related to the action. The proposed
rule would ensure that agencies focus their attention on effects
that are " reasonably foreseeable " and have a " reasonably
close causal relationship " to the proposed action.
Modifying the definition of " effect " is a significant change. Although
silent on greenhouse gases, the change would arguably
preclude agencies from considering a proposed action's effect on
climate change, including upstream and downstream effects. The
20
proposed rule targets judicial decisions blocking energy infrastructure
development by requiring permitting agencies to consider the
cradle-to-grave effects of a project on climate change.
Page and Time Limits
The proposed changes would also place page and time limits
on NEPA review documents. The average length of an EIS
with appendixes is more than 1,000 pages. The proposed rule
would presumptively establish a 75-page limit for EAs and clarifies
that an agency does not need to include a detailed discussion
of each alternative in an EA, nor does it need to include a
detailed discussion of alternatives it eliminated from study. In
contrast, an EIS requires a detailed analysis of all significant environmental
effects, which the proposed changes would limit
in most cases to 300 pages. The proposed rule would address
the average waiting period of more than four years by establishing
one year as the presumptive timeframe for issuance of
an EA, and two years as the presumptive timeframe for an EIS.
Other notable changes would allow applicants a greater role
in preparing NEPA documents, allow agencies to determine
that compliance with the environmental review requirements
of other statutes serves as the functional equivalent of NEPA
compliance, require agencies to prepare joint NEPA documents
when practicable, and expand the use of categorical exclusions
by considering mitigating circumstances.
Opposition to the dramatic shift in both the process and
substance of NEPA review proposed by the rulemaking will inevitably
invite litigation from climate activists and green states
where proposed fossil fuel development projects are currently
undergoing contested permitting processes. Paradoxically,
these rules, if finalized, could spur investment in and permitting
of renewable wind, solar, hydroelectric, and other alternative
energy projects, which individually and collectively help combat
the effects of climate change.
A prolonged legal battle in multiple venues could end up
in the hands of the nation's highest court. Democrats have
pledged a swift legislative response to the proposal, perhaps
invoking the dormant Congressional Review Act, which allows
Congress to overrule a regulation by joint resolution.
CEQ has invited public comments to be submitted by March
10, 2020, although members of Congress and environmental
activists are currently lobbying for additional time in light of the
vast number of comments expected and the sweeping changes
proposed. Given that this is an election year, stay tuned, as
the Trump administration is racing against the clock to finalize
the rule before the November election. ■
-Beth Ginsberg is a partner at Stoel Rives LLP where she
litigates natural resource, wildlife, and environmental cases, and
counsels clients on the complexities of regulatory compliance
and permitting issues. Max Yoklic is an associate in Stoel Rives'
Environment, Land Use & Natural Resources group.
www.powermag.com
POWER | March 2020
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POWER March 2020

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