Will Revised CEQ NEPA Regulations Speed Decisions? Guest Post by Joe Carbone

If you’ve been following this in a casual way, you might have heard “this is the best thing since sliced bread” or “the Trump administration has eviscerated NEPA.” But what’s really in it? I asked Joe Carbone, one of the most wise, thoughtful, and experienced NEPA experts I know, to give his views and to kick off a discussion.

According to the Council on Environmental Quality (CEQ), their revision to the National Environmental Policy Act of 1969 (NEPA) regulations (40 CFR 1500-1508) “updates, modernizes, and clarifies the regulations to facilitate more efficient, effective, and timely NEPA reviews by Federal agencies.” Multiple organizations have raised complaints about the revised regulations undercutting NEPA’s goals.

We can engage in many discussions about the pros and cons of the CEQ revisions; however, as a long-time NEPA practitioner and policy wonk, I am first asking whether the revisions will meet CEQ’s intended outcomes. While the 2020 regulations are somewhat more modern, I do not understand why the administration and industry groups are cheering the changes as an accomplishment for future infrastructure projects requiring Environmental Impact Statements (EIS). Although contrasting flowcharts at the regulation rollout in Atlanta showed a dramatic change under the revised regulations, the changes will fall short of CEQ’s goals when it comes to EIS efficiency.

The regulatory impact analysis for the rule is qualitative, attributing savings to the same efficiencies in the 1978 regulations (reduce unnecessary paperwork, reduce delay, improve coordination, focus less on non-significant impacts). The greatest reduction seems to be based on the now required presumptive time limit for EISs (58% reduction assuming a 2-year completion time).

Generally, some of CEQ’s changes merely reorganize the regulations and incorporate modern technology, current agency practice, CEQ guidance, and case law. These have little to no impact on future efficiency since they are already used today. However, other changes remove requirements that were already based on case law (i.e. cumulative and indirect effects) and add many new requirements [i.e. notice of intent request for potential alternatives, information, and analyses [1501.9 (d)(7)], summary (1502.17), comments on the summary [1503.1(a)(3)], and a certification in a record of decision [1505.2(b)]. The uncertainty surrounding eliminated requirements originally based on case law and new requirements will surely extend the cost and time needed to prepare an EIS.

Removing previous requirements that were based on case law such as indirect and cumulative effects leaves the impression these types of effects no longer need to be considered. This poses uncertainty for Federal agencies as they debate the merits of whether to include them. This is a change the environmental community and the courts are not likely to ignore. In the end, agencies will still need to consider indirect and cumulative effects; however, the uncertainty, debate, and resulting litigation will undermine timely decisions and implementation.

The requirements associated with a new summary in the draft and final EISs (this is in addition to the required executive summary) will take more time and documentation to implement as this requirement spans from the notice of intent to file an EIS through potential litigation after a decision. This problem starts with one of the four new requirements in a notice of intent to file an EIS. Agencies must now include “a request for identification of potential alternatives, information, and analyses relevant to the proposed action.” This information ties to the new requirement for including a summary in the draft EIS that identifies “all alternatives, information, and analyses submitted by State, Tribal, and local governments and other public commenters during the scoping process.” This summary then ties to the new requirement for a draft EIS, to “invite comment specifically on the submitted alternatives, information, and analyses and the summary thereof.” The final EIS must also include a summary of “all alternatives, information, and analyses submitted…in developing the final environmental impact statement.” This summary then ties to the new requirement for a record of decision, to: “certify in the record of decision that the agency has considered all of the alternatives, information, analyses, and objections submitted by State, Tribal, and local governments and public commenters.” All of this is tied to judicial review, where “Comments or objections of any kind not submitted, including those based on submitted alternatives, information, and analyses, shall be forfeited as unexhausted” [1500.3(b)(3)]. As the regulatory impact analysis states: “CEQ expects the exhaustion requirement to reduce the litigation costs that NEPA generates.” As I see it, this is a typical approach to fix NEPA litigation – add more documentation. How does this shorten timeframes and speed decisions?

Agencies already receive thousands of comments on draft EISs, including articles, research, photos, and other information – relevant or not. You can bet they will receive many more comments covering a wide spectrum of “alternatives, information, and analyses” along with traditional comments on alternatives and effects during scoping and the draft comment period just to cover commenters’ potential litigation needs. Agencies will need to track every comment related to each commenter, prepare the summaries for the draft and final EISs, certify in the record of decision that the comments were considered, and review standing eligibility in case of a lawsuit.

With new regulatory interpretations and requirements, there is an added burden of showing the agency took a hard look and was not arbitrary and capricious in its findings, decisions, and certifications. This will take quite a record. While agencies are compiling records they will also be counting pages to keep the EIS under the now required 150-300 pages (1502.7), marking time to get to a decision within two years [1501.10(a)(2)], and tracking EIS costs to put on the cover [1502.11(g)]. Perhaps those are the requirements designed to speed the process, but they are more likely to be distractions and agency time-sinks on top of the new summary requirements.

Do those who are cheering the revised NEPA regulations see something to speed agency decisions or have they been fooled by messaging and optics? I do not understand how more process and documentation requirements will shorten timelines, but I am open to hearing how others see these changes playing out if the revised rule is implemented.

Joe Carbone, Carbone Consulting, LLC

Joe Carbone is a National Environmental Policy Act (NEPA) consultant and trainer. He retired after 37 years with the U.S. Forest Service where he oversaw the agency’s NEPA policy in Washington D.C. and Atlanta. He served as Deputy Associate Director for NEPA at the Council on Environmental Quality in 2016.

9 thoughts on “Will Revised CEQ NEPA Regulations Speed Decisions? Guest Post by Joe Carbone”

  1. I wonder if the page limit might especially be counter productive to the goal of decreasing the time it takes to complete an EIS. I am granted a very verbose writer, but at least for me, it is way harder and takes more time to write something with a length limit than without. That just forces me to put a lot more effort into editing and trimming to figure out what to cut out. I imagine a page limit on NEPA process will similarly force the Forest Service to spend a lot of time figuring out how cut out large amounts of analysis to be under the page limit while still covering everything they are legally required to cover. Could be quite a conundrum.

    • Patrick, from some discussions, the more pragmatic folks think that feds will get around this by simply having more appendices. Also they can get permission from higher-ups to exceed the limits.

      • Ah, so like when my professors in law school didn’t count footnotes toward the word limit, so I was able move whole arguments to the footnotes. I loved that trick. Right up there with using 11.5 point font and expanding the margins by 1/8 inch on papers with page limits instead of word limits. =)

  2. An interesting viewpoint. One thing that people who advocate efficiency misunderstand is that when you delve into a process-laden statute such as NEPA, what is in regulatory print is what you are accountable for. So, Joe is right on to point out the additional time burdens of using documentation as a tool to address possible/probable litigation claims that a federal agency did not address publicly-submitted information in its analysis. Efficiency comes from doing something less, not more. For example, I found that reducing the number of words describing analysis to be more efficient in terms of page length, but not necessarily time (an elusive topic for “efficiency”).

    Root causes for “inefficiency” in the Forest Service NEPA work are two things in my view: (1) the lack of commitment to a true interdisciplinary approach to decision making (leverage team members’ skills broader than their expertise) and (2) the lack of critical thinking at the beginning of a project that could be used to gain efficiencies late in the decision making process. If those two items were moderately addressed in how the FS NEPA process was managed, efficiencies would be realized in spite of what the EADM (Environmental Analysis and Decision Making) movement claims.

    • Tony- I’m interested in your (1) and (2) but can you give examples or be more concrete in what you’ve seen work/not work? In fact, I think that that would make a good separate post.

      In fact, I wonder if we even need to discuss whether “efficiency” is a useful measure and what it might mean if it is.

  3. I have a couple of thoughts on this.

    1. Page limits. I don’t know why it is, but there seems to be a longstanding view that Feds and contractors write too much because 1) they are too lazy to edit, 2) internal ID teams’ dynamics of not editing each other, 3) there’s no obvious benefit to finishing quickly instead of blathering interminably or ????. Let’s get these out in the open.

    I think a great discussion would be to have this convo with folks at CEQ and/or a study- compare internally produced docs with state-produced (if we have them now) and contractor produced, also introduce the factor of the probability of being litigated. If we don’t really agree what the problem is, how can we develop a solution?

    2. My view is that many of these efforts don’t identify NEPA docs as really being preparatory for courts. As long as litigants argue “they didn’t put that in” and win, it seems to me that that is where the pressure comes from to cover all possible bases. But judges are holding all the cards here. Some of the discussions around this reg suggest that judges will think that parts of the CEQ rule oversteps onto their turf and they will ultimately blow off provisions they don’t like. I don’t like this necessarily, from a political science point of view (separation of powers) but I think if we spoke more openly and directly about why EIS’s are long, we could come to better conclusions and possible remedies. But again, honestly, perhaps there are none, because no document can have everything that every judge wants. Even when agencies fix things judges want, the next time the new judge can want different things. And so it goes.

    3. As to doing more and speeding things up, that’s what I thought about the 2012 Planning Rule that claimed to do more stuff and yet speed things up. Rule writers can claim anything.

    4. Finally, “In the end, agencies will still need to consider indirect and cumulative effects; however, the uncertainty, debate, and resulting litigation will undermine timely decisions and implementation” , that’s absolutely true, and I’m not a fan of these particular changes, but, on the other hand, anything worth doing is worth getting litigated about and will lead to some uncertainty. I’m thinking the 2001 Roadless Rule here.

  4. “no document can have everything that every judge wants”
    Then why doesn’t the government lose all of its lawsuits instead of winning most of them?

    Conversely, why can’t it win all of its lawsuits on vegetation management since it has 50 years of learning how to do it? Often, because they try to cut big corners, like not identifying site-specific effects, or using an improper categorical exclusion. They often know the risk, take it anyway (to meet their targets) and then blame the plaintiffs or the courts. This is a management problem. So is “efficiency.”

  5. Here is where this is headed: https://www.endangeredspecieslawandpolicy.com/ceq-tweaks-nepa-regulations

    “On June 29, 2021, the Council on Environmental Quality (CEQ) will publish an interim final rule (IFR) extending by two years the deadline by which federal agencies are required to adopt updated National Environmental Policy Act (NEPA) regulations by two years.

    In the preamble to the interim final rule, CEQ explains that it has “substantial concerns” about the legality of the previous administration’s update to NEPA regulations, including the process by which those rules were promulgated and how the rules address climate change and environmental justice. CEQ also confirmed its intention to make additional changes to the NEPA regulations that went into effect in late 2020.”

    It’s also in litigation: https://forestpolicypub.com/2020/10/06/nfs-litigation-weekly-october-2-2020/

  6. Also, a separate lawsuit against the 2020 CEQ changes by environmental organizations has been dismissed as unripe: “The 2020 Rule is instead similar to the forest management plan at issue in Ohio Forestry because it does not directly regulate the plaintiffs, and additional procedural actions must occur before it impacts the consideration of any specific proposed project.” The court also found, “After careful consideration, I conclude that the harms the plaintiffs allege are too speculative to satisfy Article III’s requirements” for standing.


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