Establishing environmental priorities
Rescinding conflicting policies
To advance the above priorities, Executive Order 13990 charges federal agencies—consistent with applicable law—to consider suspending, revising, or rescinding the previous administration’s actions that are inconsistent with the current administration’s priorities. Most significantly, the Department of Justice (DOJ) is directed to notify courts with jurisdiction over pending litigation (related to those past actions identified by agencies for suspension, revision, or rescission) and, in DOJ’s discretion, request that the affected court stay or otherwise dispose of the litigation or seek other appropriate relief until the completion of the process to replace or revise the affected action.
For example, in the litigation Wild Virginia v. Council on Environmental Quality, the DOJ filed a brief in the U.S. District Court for the Western District of Virginia stating that the Biden administration has identified “numerous concerns” with the revised regulations. DOJ requested the court to remand the rule (i.e., send it back to CEQ for further action) rather than carry on with the litigation. Because DOJ requested the court to remand the rule without vacating it, the rule would remain in effect until CEQ amends it. DOJ stated that the rule’s continued effectiveness would not prejudice future plaintiffs’ option to challenge individual federal actions processed under the rule.
CEQ has started a comprehensive review of the rule. Matthew Lee-Ashley, CEQ’s interim chief of staff and senior director for lands, said in a declaration to the court that “CEQ expects to decide in the coming weeks how to address the questions and concerns” and that CEQ would decide “whether to propose to amend or repeal the 2020 Rule, in whole or in part.”
The DOJ Brief included the following list of specific topics that CEQ has under review:
- “Whether the 2020 Rule may adversely affect environmental justice or impair participation by environmental justice communities in the NEPA process;
- Whether the 2020 Rule may adversely affect climate change, climate resilience, or environmental quality generally;
- Whether the 2020 Rule is consistent with administrative law principles or unduly restricts public and community participation, including participation by environmental justice communities and their members, or has the foreseeable effect of unduly restricting such participation;
- Whether the 2020 Rule improperly or unlawfully circumscribes the range of alternatives, long recognized by regulation and caselaw to be the heart of an Environmental Impact Statement, or has the foreseeable effect of leading agencies to consider an improperly narrow range of alternatives;
- Whether the 2020 Rule improperly or unlawfully circumscribes the environmental effects, including climate change effects, to be evaluated by federal agencies, or has the foreseeable effect of leading agencies to improperly circumscribe the environmental effects considered;
- Whether the 2020 regulation improperly or unlawfully excludes certain actions from the definition of “major federal action” for purposes of NEPA’s applicability or has the foreseeable effect of improperly excluding certain federal actions from review under NEPA.”
In addition to establishing an ongoing agency review of conflicting past actions, Executive Order 13990 also immediately and specifically rescinds numerous, conflicting Executive Orders. Of these, the three revocations most relevant to a federal agency’s NEPA practice are: Executive Order 13766, Expediting Environmental Reviews and Approvals For High Priority Infrastructure Projects; Executive Order 13927, Accelerating the Nation's Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities; and Executive Order 13807, Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects. Executive Order 13807 established the authority for the One Federal Decision (OFD) process to apply to planned infrastructure projects subject to NEPA compliance.
Although the OFD process is now no longer available to federal agencies, most of its major provisions—except for the requirement to establish concurrence points—were subsequently incorporated into the revised CEQ NEPA implementing regulations. Consequently, they now apply not only to infrastructure projects but to all major federal actions. Although the administration may not have gained much by revoking OFD, this revocation may be an indication that many of the OFD provisions incorporated into the current CEQ regulations may also be eventually eliminated.
Tackling the climate crisis
Reestablishing GHG emission and climate change analyses in NEPA documents
Executive Order 13990 also revokes the Trump administration’s draft guidance on the consideration of greenhouse gases (GHGs) in NEPA documents and directs CEQ to update for implementation the previously issued Obama administration’s guidance. Accordingly, CEQ recently removed the draft guidance entitled, “Draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions,” 84 FR 30097 (June 26, 2019) and replaced it with the former, final guidance entitled, “Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews.”
In so doing, future GHG impact analyses in NEPA documents will most likely be expected to again include quantification of GHG emissions from both the proposed action’s emission sources as well as any upstream and downstream emission sources; assess climate change impacts on the affected environment and the proposed action to include any resulting disproportionate adverse impacts on vulnerable communities; and consider mitigation as well as opportunities for resilience and adaptation in the design and implementation of the proposed action.
Account for the benefits of reducing climate pollution
Additionally, Executive Order 13990 establishes an Interagency Working Group on the Social Cost of Greenhouse Gases for the purpose of developing both guidance on estimating costs for the social cost of carbon (SCC), social cost of nitrous oxide (SCN), and social cost of methane (SCM)—and recommendations as to the types of federal actions these estimates should be applied.
The estimates are intended to include changes in net agricultural productivity, human health, property damage from increased flood risk, and the value of ecosystem services. Interim guidance for estimating these costs is to be used by agencies in relevant decision making until final guidance is available. The recently released interim SCC estimate is reportedly $51 per ton, equivalent to the Obama administration’s estimate, and considerably more than the $1 to $7 per ton range used by the Trump Administration. Interim SCM and SCN estimates were also released and, based on these emissions’ stronger role in affecting climate, are much higher at $1,500 a ton and $18,000 a ton, respectively. When subsequently made final, all three cost estimates are expected to increase.
Whether CEQ will eventually recommend using these cost estimates in NEPA documents remains to be seen. The recently reposted Obama-era GHG guidance referenced above states that NEPA does not require monetizing costs and benefits. However, CEQ additionally pointed out at that time that if an agency chooses to monetize some but not all impacts of an action, the agency providing this additional information should explain its rationale for doing so. The implication being that if an agency monetizes some analytical components, such as social or economic benefits, then in fairness it should monetize the costs of climate change via the SCC methodology.
Additional steps in tackling the climate crisis
Within a week of releasing Executive Order 13990, the administration reiterated its emphasis on addressing climate change with the release of Executive Order 14008, Tackling the Climate Crisis at Home and Abroad, dated January 27, 2021. This Executive Order establishes the White House Office of Domestic Climate Policy within the Executive Office of the President, as well as a National Climate Task Force composed of all major federal departments and agencies.
While the Executive Order pauses new oil and natural gas leases on public lands and in offshore waters, it proposes to increase renewable energy production on those lands and in those waters, with a goal of doubling offshore wind by 2030. Additionally, all federal agencies that operate a federal facility are directed to prepare a Climate Action Plan to improve adaptation and increase resilience. Whether these plans will be subject to NEPA compliance remains to be seen. But certainly all proposed renewable energy production projects would require NEPA compliance, and potentially uniquely through incorporation into promised expedited siting and permitting processes specific to renewable energy production projects.
Advancing environmental justice and tribal consultation
In these early administration policy pronouncements, perhaps second in line to the priority to tackle climate change are the repeated commitments to more effectively advance environmental justice. Accordingly, and specific to tribal concerns, is improving federal coordination with tribes. On January 26, 2021, President Biden signed the, “Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships.” The Memorandum states that the current need to reaffirm tribal consultation stems from the disproportionate harm to Native Americans from our current “national crises related to health, the economy, racial justice, and climate change.”
The Memorandum also reinforces and reaffirms the provisions of Executive Order 13175 of November 6, 2000, Consultation and Coordination with Indian Tribal Governments, by charging agencies to engage in “regular, meaningful, and robust consultation” with tribal officials in the development of federal policies that have tribal implications. Those policies are defined to include actions that have substantial direct effects on one or more tribes. Consequently, NEPA documents and processes analyzing such actions will need to implement and reflect this robust consultation.
Looking ahead and back
On day one, President Biden nominated Brenda Mallory to be the Chairperson of CEQ. She was confirmed on April 14, 2021. She was CEQ’s General Counsel for a time during the Obama Administration, and recently was Director of Regulatory Policy for the Southern Environmental Law Center. The Center was the first out of the blocks to file a lawsuit against the implementation of the Trump administration’s CEQ regulations.
The following brief look at its major claims and assertions in that ongoing litigation may shed some light on where CEQ may target its future revisions to these regulations. The Center asserted that the CEQ regulations inappropriately: narrow the direct effects to be analyzed while reducing from the scope of the impact analysis both indirect and cumulative impacts; set arbitrary page and time limits; restrict the types of federal actions subject to NEPA compliance as well as the range of alternatives requiring analysis; allow applicants to prepare EISs as well as make project commitments prior to NEPA completion; delete the factors determining significance; and waive the need for cost effective new studies and research in assessing potentially significant impacts.
However, the administration’s desire to quickly fund numerous infrastructure projects may leave the current two-year EIS completion deadline in place. But during Mallory’s confirmation hearing before the Senate Environment and Public Works Committee, she said that, if confirmed, CEQ would do robust analyses of permits “in a way that ensures that we have significant infrastructure projects and that economic recovery, which is based on those projects, can occur.”
The new Secretary of Interior, Deb Haaland, decided on April 16, 2021, not to wait for any further action or revisions regarding CEQ’s 2020 NEPA regulations. In Secretarial Order 3399, Department-Wide Approach to the Climate Crisis and Restoring Transparency and Integrity to the Decision-Making Process, she directed the Department’s Bureaus and Offices to “not apply the 2020 Rule in a manner that would change the application or level of NEPA that would have been applied to a proposed action before the 2020 Rule went into effect on September 14, 2020.”
Bureaus/Offices will continue to follow the Department’s NEPA regulations at 43 C.F.R. Part 46, Department Manual procedures (516 DM Ch. 1-15), and guidance and instruction from the Office of Environmental Policy and Compliance. If Bureaus/Offices believe that the Department’s NEPA regulations irreconcilably conflict with the 2020 Rule, they will elevate issues to the relevant Assistant Secretary and to CEQ. Consistent with Order 3399, the Secretary simultaneously revoked the Department’s previous NEPA streamlining requirements (Order 3398), including the one-completion deadline for environmental impact statements.
Over the coming weeks and months, federal agencies’ NEPA compliance as practiced during the Trump administration will be changing under the direction of President Biden and the new CEQ. Expected revisions to the current CEQ NEPA implementing regulations should eventually be the greatest source of change with these revisions—possibly resulting from court rulings in the ongoing, multiple litigations against the validity of these current regulations, DOJ’s negotiations with the affected federal courts and litigants, interim CEQ guidance, an eventual CEQ rulemaking, and/or a combination of these actions.
Our experts will be closely watching these new developments. We stand ready to work with federal agencies as well as applicants to expeditiously comply with a changing NEPA landscape.