NEPA: Shifting Sands in the Courts and CEQ and How That Relates to FOFA, or Not

Someone asked me about the NEPA parts of the Fix our Forests bill that recently passed the House.

Having read it, it sounds like the bill would (in already designated firesheds, for wildfire-related projects (some groups think the language is too broad)) expand the current group of 3000 acre CEs to 10K acres.  It’s a bit hard to understand, as it goes down the list of existing CEs and just amends the language for designated firesheds.  There’s also a process to go through to designate more firesheds. Does anyone see any other NEPA tweaks in the bill?

Then there are also tweaks to litigation, which I won’t go into here.

In this post, I am trying to place whatever changes the bill might include into the broader picture of what’s going on with NEPA reform.  It reminds me a bit of what we used to say about tree improvement, it’s like riding a bicycle, fixing it and building a new one at the same time.  People who want projects of various kinds, transmission lines to geothermal to highways to fuel projects, are riding the bicycle.  The Congress is attempting to fix parts (in this case, for fuels, but perhaps some version of the broader permitting reform package is still on the table).  Finally, some combination of the Courts and the Executive Branch may be rebuilding the whole regulatory and case law enchilada.  I hope that our legal friends at TSW will correct whatever errors I may have made in all this.

As I’ve said before, with regard to the broader permitting reform topic, the land management agencies are small potatoes.  Another way of looking at it is that when the Titans clash, it tends to send large boulders down, crushing the small, like us.  At the same time, both things are true; innovation would drastically upset the status quo, and there are opportunities for improvement.    I certainly can’t offer any predictions as to how it will all turn out.

So here is some info from the E&E News story. 

THE COURTS

1. MOVING PART  -US Court of Appeals Decision- goes to full panel?

After the D.C. Circuit ruled against CEQ’s rulemaking authority last year in Marin Audubon Society v. Federal Aviation Administration, parties on either side of the case — the Biden administration and conservation groups — asked a full panel of the court’s active judges to reconsider that element of the decision. The court has yet to say whether it will take up those requests.

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2. MOVING PART- the Supreme Court, the Coalition that includes Utes, and the oil train.

We’ve written about this one before.

In addition to the D.C. Circuit litigation, the scope of NEPA reviews is being challenged in a pending Supreme Court case, Seven County Infrastructure Coalition v. Eagle County, Colorado, which involves a court-ordered environmental review of an oil rail line. The justices appear poised to at least put new limits on what impacts agencies must consider in NEPA reviews.

EXECUTIVE BRANCH

3. MOVING PART – Trump’s EO

Trump’s directive was tucked into a broader order calling for more streamlined approval of energy projects nationwide. Instead of creating rules for how federal agencies should comply with NEPA, CEQ under Trump’s order will provide guidance to agencies and head a coordinated effort to update each agency’s environmental review procedures.

“It’s a jujitsu move,” said Ted Boling, a longtime CEQ official who helped lead NEPA reform during Trump’s first term. “It’s using NEPA for broader policy purposes.” Just as the Biden administration used NEPA updates to prioritize environmental justice and climate change, Boling, a partner at the law firm Perkins Coie, said he expects Trump’s team to emphasize energy and critical minerals.

Trump’s order directed CEQ and federal agencies to speed up permitting and prioritize “efficiency and certainty over any other objectives” in an effort to unleash the nation’s “energy dominance.”

So let’s go to the text of the EO. A quick read suggests that it is about energy permitting and not all the other kinds of projects NEPA is used for.  Still, I don’t suppose agencies want two sets of NEPA, one for energy-related and another for everything else.

Ted knows more about NEPA in the tip of his little finger than I know in all my being, but I would argue that the Biden-era NEPA updates prioritized “writing about” climate justice and climate change; since NEPA is a procedural statute (as much as the most recent NEPA regs tried to change that).  In that light, and in my opinion, making agency folks and contractors write more stuff or use bogus Social Cost of Carbon calculations really didn’t matter as much as, say, politicals directly deciding on projects (e.g.,  Lava Ridge Wind Project), or DOJ deciding what cases to take and when to settle.  In most cases, people disagree about having the project at all or how it is to be carried out.  Analysis is helpful, of course, but at the end of the day politicals will decide whose ox will get gored. Proceduralism can be an opportunity for the non-elected and accountable to get their way. Think NRDC, for example.

The Ted Nordhaus and Nikki Chiappa had an interesting take on this today.

That doesn’t mean that there aren’t important policy questions that require democratic deliberation—about how to weigh the climate and other environmental impacts of different energy technologies, what sort of energy system we want, and how the economic and environmental costs of those decisions ought to be accounted for. But the proper venue for that is via legislative deliberation and executive action at the behest of democratically elected and accountable policymakers, not through layer upon layer of agency proceduralism, public comment, and community engagement—with private interests then empowered to relitigate those processes through the courts.

I think I’ve been trying to say this for awhile, but not as well.  Like “if we have the right kind of public involvement, people will agree.” Which places the onus on the agency folks to “do it right.”  Anyway, back to the E&E News story.

Under the order, the CEQ chair has a 30-day deadline to provide guidance to agencies on implementing NEPA and submit a proposal for rescinding regulations finalized during the Biden administration.

“It’s a huge deal for NEPA implementation, for the requirements of NEPA, for requirements about what constitutes a major federal action,” said Thomas Hochman, director of infrastructure policy at the Foundation for American Innovation, during a discussion Monday of the executive order on the social media platform X.

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Here’s something from Tom Hochman via E&E News.

Hochman said Trump’s directive will give agencies more control over when they conduct a more rigorous form of NEPA review, known as an environmental impact statement, or opt for a less robust environmental assessment.

“Hopefully agencies, in combination with CEQ guidance, will be able to tailor their own implementing procedures to the specifics of what they have jurisdiction over,” he said. “And CEQ will have that umbrella oversight and guidance.”

I found this confusing..

James Coleman, an energy law professor at the University of Minnesota who has advocated against CEQ’s rulemaking authority, said during the conversation on X that agencies are likely to treat the White House council’s guidance as binding, but courts won’t be required to follow it.
“Probably most cases will continue to go the way they have gone in the past because you will have judges that have been around for 20 or 30 years, and they will continue to follow their old decisions,” he said.

But that will eventually change as new judges are appointed, he added.

Because I thought that judges had to go with whatever regulations are on the books, assuming the agencies issue new NEPA regs?

Boling predicted that CEQ’s new framework for NEPA reviews would be based on Trump-era council regulations that were partially codified by Congress in the Fiscal Responsibility Act of 2023. Unlike a new CEQ rulemaking process, he said, this approach could more quickly target how agencies implement NEPA. “It’s a formula for very rapid action,” Boling said.

Meanwhile, Hochman points out in this Tweet that the Fiscal Responsibility Act s built on the now-not CEQ regs, another example of how regulatory and statutory efforts are entwined.