The Proposed CEQ NEPA Regs Phase 2: Making Renewable Build-out More Difficult

In yesterday’s post, I suggested that climate and energy policy could use Agreement, Alignment, and Accountability.

In the absence of some kind of  USG agreement, we might hope that at least the Biden Administration would have some degree of alignment.  My observation is that different agencies seem to be influenced by different interest groups, with different views which leads to massive non-alignment.

Sometimes the Admin says that they are big fans of a massive renewable buildout across federal lands.  According to this press release:

The Biden-Harris administration is committed to expanding clean energy development to address climate change, enhance America’s energy security and create good-paying union jobs. The projects we are advancing today will add enough clean energy to the grid to power millions of homes,” said Secretary Deb Haaland. “Through historic investments from President Biden’s Investing in America agenda, the Interior Department is helping build modern, resilient climate infrastructure that protects our communities from the worsening impacts of climate change.”

“The BLM’s work to responsibly and quickly develop renewable energy projects is crucial to achieving the Biden-Harris administration’s goal of a carbon pollution-free power sector by 2035,” said BLM Director Tracy Stone-Manning. “Investing in clean and reliable renewable energy represents the BLM’s commitment to addressing climate change and supports direction from the President and Congress to permit 25 gigawatts of solar, wind and geothermal production on public lands no later than 2025.”

As we’ve discussed before, the solar industry had concerns about the BLM proposed conservation rule.. but on the other hand BLM reduced the fees by 50% on federal land, so that solar and wind would generate more profit (or cost less to attract investors).  So that’s not as clear an alignment as might be possible, but even less aligned appears to be the recent Proposed CEQ NEPA regulations.

Ted Boling, formerly of CEQ, called the NEPA changes in the Fiscal Responsibility Act “a full employment program for environmental litigators.”  Since based on Ted’s observation,  they have already reached full employment via the changes in the Fiscal Responsibility Act, it’s hard to imagine what would happen if all the changes in the Proposed NEPA regs make it into the final rule.   Perhaps law schools could get funding from the Feds to expand their programs..

Now to be fair, perhaps at least the Congressfolks intended to streamline processes.  It does seem to me, though, that there is a gap between Congressional staffers and environmental lawyers on the one hand, and NEPA practitioners in agencies, on the other hand, about what are useful interventions that might help make NEPA procedures better.  It seems like some of the ideas may sound great to the people writing them, but they have no idea about how things work in the real world of agency NEPA.   My impression of these proposed regs was that of CEQ tying knots around agency efforts of all kinds, and making sure that the regs bristle with new legal hooks. Yes, it’s a climate emergency and we need  to build things  (by 2030).. but maybe not at the risk of reducing the decision-making power of those who currently have their feet on the brakes.   So we have lots of funding via new bills, but no one has taken their feet off the brake, in fact they are expanding the braking power.  I don’t know what the auto analogy is at this point, but we could waste a great deal of  (borrowed) money and get nowhere.

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From the NAFSR comments (National Association of Forest Service Retirees):

The CEQ regulations need to provide consistency, reliability, and simplicity so the Federal agencies, public, and courts understand requirements related to the statute, as well as the flexibility allowed for a wide variety of applications and efficiencies today and into the future. There were some unnecessary NEPA burdens imposed by the previous administration and also by Congress in the Fiscal Responsibility Act.  Including the changes in this proposed regulation, the cumulative impacts of all these new requirements may make it impossible for agencies to efficiently and effectively meet requirements to integrate environmental considerations in their planning and decision making. Additionally, political whip-saw changes to the CEQ regulations upset an orderly process for agencies to plan, decide on, and implement programs. The instability of the law and CEQ regulations means agency NEPA procedures, guidance, and training are constantly out of date.

In our view, CEQ should avoid requiring agencies, NEPA contractors, and legal professionals working for project proponents and opponents, as well as judges in the federal courts, to strike out into unexplored legal territory.  This is unlikely to either help agencies increase the efficiency of project planning and implementation, or respond quickly and flexibly to climate emergencies as they arise.

The stability of the pre-2023 statute and the pre-2020 CEQ regulations provided a reliable and steady baseline for agencies to operate within.  While case law and agency practices raised questions, burdens, and remedies, CEQ guidance and agency innovation have helped agencies navigate these challenges in the past.

(my bold)

And

Stability also involves not making changes that are likely to be litigated. Litigation extends the time until agencies understand and can act on requirements.  Two potential outliers compared to what we might call “Classic NEPA based on the 1978 Regulations” are both related to the idea of NEPA as an action-forcing statute, and are likely to be litigated.  The first is an effort to walk away from acknowledging NEPA’s history as a procedural statute; the second is requiring mitigation.  It’s not clear what problems these changes would be responding to; they are likely to be litigated or clarified by Congress; and they do not add modernization or efficiency.   If there are not enough substantive environmental statutes on the books, we think the answer is to encourage Congress to pass more, not to add more requirements to the NEPA process.

One of the least helpful additions is not from CEQ, at all but a new Congressional requirement to review programmatics every five years (for us, think RMPs and forest plan EISs).  This seems puzzlingly unnecessary. I’ve never heard anyone complain that agencies don’t review programmatics enough; I’ve only heard from previous CEQ folks that agencies should use them more.

I know many of you have written very thoughtful comment letters on the CEQ Proposed NEPA Regs.  Please put your thoughts and links to your comments below.