On July 16, 2020, President Trump’s Council on Environmental Quality (“CEQ”) published the long-awaited final rule revising the implementing regulations for the National Environmental Policy Act (“NEPA”). 85 Fed. Reg. 43,304 (July 16, 2020). NEPA requires federal agencies to consider the environmental impact of major federal actions, which include permitting for energy projects on federal land. Pipeline projects, solar and wind farms, oil and gas development, and other infrastructure projects must go through the lengthy NEPA permitting process before construction can begin. This process takes 4.7 years on average and can exceed seven years in some cases, and critics say these lengthy delays unnecessarily stymie construction and development and diminish America’s ability to compete in the global energy market.
The final rule is the culmination of a long process set in motion in the early days of the Trump administration, when the President directed CEQ to review its regulations to modernize and accelerate the NEPA process. See Executive Order No. 13,807 (Aug. 15, 2017). The final rule adopts in substantial part many of the changes proposed by CEQ earlier this year in its Notice of Proposed Rulemaking (“NPRM”), 85 Fed. Reg. 1,684 (Jan. 10, 2020), particularly about whether and how agencies must factor climate change into NEPA analyses.
Over the past few decades, NEPA litigation has turned into a proxy battle for the broader climate change debate. The new rule will bring this issue to the forefront. Specifically, litigation will focus on whether and to what extent the government must consider a particular project’s impact on domestic and global climate change. The final rule makes clear that the definition of environmental “effects” or “impacts” requires the government to consider only reasonably foreseeable effects with a reasonably close causal relationship to the federal action. Given the very small contribution any individual infrastructure project may have to overall climate change, this change likely precludes an agency from considering climate change as part of its NEPA analysis in many or most instances. Litigation over how these new regulations affect the role of climate change in NEPA analysis is all but certain. CEQ is expected to issue guidance on how agencies must account for any reasonably foreseeable greenhouse gas emissions, which should clarify some uncertainty, but many questions remain.
Analysis of Regulations
For any “major federal action significantly impacting the human environment,” NEPA requires agencies to consider, among other things, “the environmental impact of the proposed action,” and “any adverse environmental effects which cannot be avoided should the proposal be implemented.” 42 U.S.C. § 4332. Because NEPA leaves these terms undefined, CEQ has long filled the gap through regulations, previously categorizing effects as either “direct,” “indirect,” or “cumulative,” the latter of which refers to “the combination of individually minor effects of multiple actions over time.” Climate change is a quintessential cumulative effect because it results from the combined impact of many human activities.
But the new regulation does away with these categories, instead directing agencies to focus on effects or impacts more closely connected to a proposed action:
Effects or impacts means changes to the human environment from the proposed action or alternatives that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives, including those effects that occur at the same time and place as the proposed action or alternatives and may include effects that are later in time or farther removed in distance from the proposed action or alternatives.
§ 1508.1(g)(1). The new regulation also narrows the circumstances under which a proposed action is said to “cause” an effect or impact for NEPA purposes:
A “but for” causal relationship is insufficient to make an agency responsible for a particular effect under NEPA. Effects should generally not be considered if they are remote in time, geographically remote, or the product of a lengthy causal chain. Effects do not include those effects that the...
