Photo Credit: Jack Atkinson
August 31, 2023
Skiers and Climbers Applaud Biden Administration for Restoring NEPA
On July 28, 2023, the Council on Environmental Quality (CEQ) released its Phase 2 Proposed Rule for implementing the National Environmental Policy Act (NEPA). Finalizing this Rule is the final step in a multi-phase process to restore NEPA after the Trump Administration attempted to gut the law in 2020 by rewriting the implementing regulations (Rule) so as to allow government agencies to cut corners, ignore climate change, and put industry in the driver’s seat when writing environmental reviews. We sued to stop the 2020 Rule and appreciate that restoring NEPA has been a top priority for the current administration. This new Proposed Rule also incorporates updates to comply with the changes Congress recently made to NEPA in the Fiscal Responsibility Act of 2023.
What’s the Background?
NEPA is the nation’s most important environmental law. It is an empowering legal tool that allows communities in the United States to defend themselves against harmful government and industry actions. NEPA ensures that the federal government makes the best decision based on the best information while engaging and informing the public it serves.
In 2020, the Trump Administration tried to gut NEPA by rewriting the Rule that guides its implementation, Winter Wildlands and the American Alpine Club joined 18 other conservation and social justice organizations to take the Administration to court.
In April 2022, the Biden Administration completed a Phase 1 NEPA Rule, restoring the basic environmental safeguards intended by NEPA. This proposed Phase 2 Rule, the Bipartisan Permitting Reform Implementation Rule, completes the reversal of the 2020 rollback and further strengthens and modernizes NEPA by ensuring environmental reviews are efficient and timely without shortchanging the environment or public engagement.
The Proposed Rule seeks to streamline NEPA while staying true to the law’s purpose of environmental protection and transparency. It incorporates the deadlines, page limits, and categorical exclusion provisions prescribed in the Financial Responsibility Act (which we don’t love) but balances these elements with strong environmental justice requirements and clear guidance on incorporating climate change and other direct, indirect, and cumulative impacts, utilizing best available science, and limits on how categorical exclusions can be applied.
“Updating the NEPA Rule to meet the challenges of our time while staying true to NEPA’s fundamental goals of environmental and resource protection is no easy task and we’re impressed with what CEQ has produced.”
-Hilary Eisen, Winter Wildlands Alliance Policy Director
Environmental Justice Provisions
This new proposed Rule marks the first time that CEQ explicitly mentions environmental justice as an issue that government agencies must consider in environmental reviews. The Proposed Rule mandates that agencies pursue meaningful engagement with communities of color, low-income communities, indigenous communities, and Tribal communities early and throughout the NEPA process and consider alternatives that reduce adverse health and environmental effects that would disproportionately affect these communities.
The Proposed Rule also includes “potential disproportionate and adverse effects on communities with environmental justice concerns” in the list of extraordinary circumstances. Extraordinary circumstances are important because they place sideboards around the use of Categorical Exclusions (CEs), potentially precluding an agency from using an otherwise approved CE.
The Proposed Rule places a much greater emphasis on Section 101 of NEPA than any previous Rules have done. This is important because Section 101 is all about protecting the environment. You may have heard us, or others, say something along the lines of “NEPA doesn’t require agencies to make the most environmentally friendly decision, just an informed decision”, and that was how the law had been interpreted by CEQ for a very long time. But by clearly articulating that the entire purpose of NEPA is and always has been to protect the environment, CEQ is emphasizing in this Proposed Rule that NEPA isn’t just about checking boxes, following procedures and giving the environment a cursory nod. Instead, in this Proposed Rule, CEQ is telling agencies that the purpose of the NEPA process is to help them make decisions that are based on an understanding of environmental consequences, and take actions that protect, restore, and enhance the environment. This represents a major shift, for the better, in how NEPA is interpreted and will be applied.
The Proposed Rule also marks the first time that CEQ mentions climate change in the NEPA regulations, elevating climate change and impacts stemming from or related to climate change as serious issues that must be addressed in environmental reviews. As the overarching environmental issue of our time, it’s hard to see how an agency could analyze the potential environmental effects of a project without considering climate change but considering the 2020 Rule sought to do away with consideration of any cumulative or indirect impacts, language that was intended to prohibit agencies from considering climate effects, it’s a big deal that climate change is front and center in this Proposed Rule.
“Understanding and addressing climate change is critical to protecting human health and the environment, and in particular sensitive mountain environments. We are happy to see the CEQ Phase 2 Proposed Rule for NEPA identify climate change as a needed consideration in the environmental review process.”
-Byron Harvison, Policy Director at the American Alpine Club.
Our organizations are pleased to see the Biden Administration fulfilling its promises to restore NEPA and ensure that impacted communities, and the climate, are fully considered in environmental reviews.
Take Action by September 29, 2023
CEQ is accepting comments on the proposed Phase 2 Rule through September 29. The public is also invited to attend any of the four virtual public meetings that will occur during the comment period. For more information on public meetings, and to review the full text of the Proposed Rule, visit CEQ’s NEPA website: ceq.doe.gov/laws-regulations/regulations.html