And Now for Something Completely Different: How the White House Can Reform NEPA

We were asked to give our thoughts on this piece by Aidan Mackenzie and Thomas Hochman.  They have been studying permitting reform for some time, and are definitely a fresh set of eyes on our ongoing challenges. They are our guests, so please respect that, and focus on the content.  I’m particularly interested in the views of those experienced with NEPA, including practitioners and environmental attorneys.

Three steps CEQ can take to fix permitting

On day one, President Trump took bold executive action to streamline the National Environmental Policy Act (NEPA), revoking the 1977 Executive Order (EO) that gave regulatory authority to the Council on Environmental Quality (CEQ).1 President Trump’s new EO also directs CEQ to rescind existing NEPA regulations and issue new guidance that significantly accelerates permitting timelines. With these measures, the Trump administration has thrown out decades of NEPA regulations and related case law.2

For those of us who have spent time learning all this..it’s fairly scary.  And as Ted Boling said about the FRA, it’s a full employment program for environmental attorneys to rebuild case law. Nevertheless, here’s the general outline of their ideas:

CEQ and implementing agencies can leverage reasonable interpretations of statutory NEPA and FRA language to achieve three significant goals:

  1. Narrow the set of actions that trigger NEPA in the first place.
  2. Expand the set of actions that are eligible for a Categorical Exclusion (CatEx).
  3. Narrow the set of actions that require an Environmental Impact Statement (EIS).

We offer three reforms to pare NEPA back to fulfill its true statutory goals. First, to narrow the set of actions that trigger NEPA, CEQ should redefine “major federal action” to ensure that projects with low levels of federal involvement do not trigger NEPA. Second, to expand the set of actions that are eligible for a CatEx, CEQ should set a clear and broad standard for actions that “normally [do] not have a significant effect on the human environment.” Third, to narrow the set of actions that require an EIS, CEQ should set a high standard for what constitutes a “reasonably foreseeable” significant effect. In each case, CEQ should be careful to reduce the litigation attack surface for agencies, advising agencies to consider issues like indirect effects under minimal scrutiny.

We can discuss any parts of their paper, but I’ll focus on the more “on the ground” implementation aspects of #2.

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The term “normally” should be defined using a practical, bright-line test for significant effects. Agencies can reasonably classify actions as “normally” having no significant effect when a substantial majority of such actions have proven benign through actual implementation.

Specifically, an action category should qualify for a categorical exclusion when historical data demonstrates that a substantial majority (more than 70%) of comparable actions resulted in Findings of No Significant Impact (FONSI). This threshold replaces previous interpretations requiring near-certainty of no significant impacts, recognizing that if a substantial majority of similar actions have proven benign through actual implementation, the category can reasonably be classified as “normally” having no significant effect.18

The streamlining benefits would be enormous: ~99% of environmental assessments result in a FONSI.19 This means that an overwhelming percentage of actions that currently trigger an environmental assessment could be covered under categorical exclusions under the new framework.

How to implement

Agencies should document factors that indicate future actions will maintain similar performance, including:

  1. Standard mitigation measures that routinely prevent significant impacts
  2. Existing permit requirements that effectively control environmental effects
  3. Common design features of best practices incorporated into such projects

These predictive factors help establish that the historical performance demonstrated by the 70% threshold will continue.

To support categorical exclusion determinations, agencies should:

  1. Analyze historical NEPA reviews to establish the proportion of FONSIs

  2. Evaluate how standard practices and requirements will maintain environmental performance

  3. Provide professional assessment of typical project characteristics and their environmental implications

  4. Maintain extraordinary circumstance review protocols for unusual situations.

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This sounds a bit like how our FS administrative CEs were developed in the first place.  People also depend on NEPA for public engagement, and the FS requires scoping of CEs but I’m not sure that other agencies do.  Finally, I don’t know how much is saved by a CE vs. an EA.  Here’s what I think it might be for an FS project off the top of my head. I have been out of this awhile, so may have forgotten quite a bit.

CEEA
Public commentScopingScoping plus Draft EA
AlternativesOneTwo or More
Objection ProcessNoYes

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 NEPA has never explicitly defined “significant effect,” leaving room for a much more reasonable interpretation. Therefore, we recommend that an action should meet all three of the following criteria to be deemed significant:

  1. Substantial magnitude: Exceeding minor or routine environmental changes

  2. Inadequate existing mitigation: Impacts that persist despite standard, widely used measures or compliance with existing regulatory thresholds

  3. High likelihood: Based on probable, non-speculative outcomes, and proximately caused by federal action

………

By tying “significance” to magnitude, likelihood, and lack of adequate mitigation, CEQ would shrink the set of “significant” impacts. This would also narrow the “cumulative impacts” concept: if those broader or longer-term effects are speculative, the agency can exclude them from “likely.” And finally, if standard permitting under other environmental laws (such as the Clean Air Act or Clean Water Act) typically addresses any effect, CEQ could determine that that the effect no longer rises to significance because it will be mitigated to an acceptable level under those other laws.

This approach would maintain fidelity to statutory language while allowing for practical implementation, reducing unnecessary analysis for actions with demonstrated track records of minimal impact. It would also create clear standards that can withstand judicial review when properly documented.

How to implement

To establish magnitude thresholds, agencies should:

  1. Identify quantitative thresholds where possible (e.g., acres of disturbance, emissions levels)
  2. For non-quantifiable impacts, define clear categorical standards for what constitutes “substantial” versus “minor” changes
  3. Document why these thresholds represent meaningful environmental distinctions

To establish likelihood, agencies should:

  1. Develop clear standards for what constitutes “probable” versus “speculative” impacts
  2. Require demonstration of direct causal links between federal action and environmental effects
  3. Consider effects that involve multiple independent actors or events as generally more speculative
  4. Prioritize analysis of direct, proximate impacts in determining significance
  5. Effects may be considered more speculative and thus less likely to be “probable” when they:
    1. Depend on the combined effects of multiple separate actions
    2. Require assumptions about future actions by other parties
    3. Cannot be directly attributed to the federal action under review

To establish adequate and existing mitigation, agencies should:

  1. Catalog standard permit conditions and widely-used mitigation measures by project type

  2. Create presumptions that impacts are not significant when standard mitigation measures are applied

  3. Establish protocols for determining when additional, project-specific mitigation might be needed.

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These all sound like things (except maybe the last three)  that agencies could put into their NEPA regulations, which would likely themselves be litigated.  At the same time, if the regulations could make their way through the courts successfully, it seems like these approaches and documentation might make life easier for agency folks, judges and environmental attorneys, while ensuring that the statutory NEPA requirements are met.

22 thoughts on “And Now for Something Completely Different: How the White House Can Reform NEPA”

  1. So heartwarmig to see profiteers suggest ways to exclude the public from govt decisions affecting their favorite places on public land.

    democracy is hard work and sometimes messy, but it sure beats the alternative, dictatorial power exercised behind a curtain.

    Reply
      • I do think it is appropriate to also critique the credibility of the source of the information posted. But some basis for labeling IFP (?) as “profiteers” should have been provided.

        Reply
        • We were asked to critique the ideas from think tank folks specifically in this post. It is not part of the request to question their “credibility”. I thought that I had clearly set that context. I think it would be fine to add info about IFP if someone other than they had posted it.

          Reply
          • I guess I misread your first sentence regarding who was asking. I guess you are saying that this (rare?) situation where the authors are asking would have different rules for moderating?

            Reply
            • Yes. Because they are invited guests. There are many places to question their organization, or even their parentage. The authors post stuff on X. So if folks want to do that, they can go there.

              Reply
          • Respectfully, and while I want to provide feedback on the post, commenting on agendas / credibility is crucial context to providing feedback. No ideas exist in a vacuum. IFP and FAI are both relatively recent think-tanks, FAI being a rebrand of an earlier “lincoln network’ or something. They’re not cranks, but they are loosely right-wing to the extent that term retains meaning now. So the direction will be towards restricting and likely eliminating policies that are considered “anti development” or are opposed by their funding networks, in this case largely pass-through foundations that move corporate and big-money donations through towards deregulatory action. None of this means it’s invalid (indeed, one could easily guess this just by reading their work) but it is useful context. To assert that “isn’t what’s being asked” is a, respectfully, a bit of a fudge. Where ideas come from matters. I’ll post another thread about the stuff itself I suppose, but if this forum is drifting towards treating this kind of discussion as off limits because it’s too partisan or mean or whatever, then that is going to really limit its value as a forum.

            Reply
            • I think we might have a cultural difference in how we approach reviewing and giving comments. If a human being from CBD or another organization I disagree with (and linked to “big money foundations”), I would ask for the same courtesy. I think that the origin of the ideas can be taken into account, while still critiquing the content. Of course, I lived through reviewing many research proposals about genetically engineered trees, an idea that I thought not useful or gonna happen, but the authors were my peeps so..I overlooked the goal I didn’t support and gave it my best shot.

              I think I have only done this twice, so there’s that. Unless other folks want the wisdom of TSW-ites?

              Reply
  2. Couple of semi-random observations …

    Re “And finally, if standard permitting under other environmental laws (such as the Clean Air Act or Clean Water Act) typically addresses any effect, CEQ could determine that that the effect no longer rises to significance because it will be mitigated to an acceptable level under those other laws.”

    o True, but bear in mind that agencies often carry out all project-related approval activities under what the agency loosely refers to as “the NEPA process.” So the suggested approach won’t always save much time, for example for projects where the bulk of the NEPA process for that project actually involves resolving difficult CWA permitting issues.

    Re “Identify quantitative thresholds where possible (e.g., acres of disturbance, emissions levels).”

    o Taken literally this suggestion appears to advocate that project context be ignored. If you give me one and only one fact (say, 1,000 acres will be harvested) I can’t tell you whether the environmental impacts will be significant or not. Ignoring the context is fine for actually small projects like mowing the district office lawn or striping an access road. But the larger and more complex a project gets, the fewer obvious analogues it possesses.

    Reply
    • Thanks, Rich, for the thoughtful comments! As a former CE creator, one of the criteria we worked with was project size. As I recall, there were concerns alleviated by considering extraordinary circumstances. Conceivably, if the list of extraordinary circumstances was broad enough, then that would take into account your last bulleted concern. Another point we talked about in CE development was “what keeps agencies from CEing areas right next to each other across the landscape?” I call this CE abuse and think common sense is the best criterion, but for awhile we discussed with CEQ having a requirement that CEd projects be a certain distance from each other.

      Finally, I think you have raised an issue with your last bullet, not so much that they are small, but that they are on an already altered piece of land. I don’t think we ever talk about that specifically (think powerline corridors) but maybe that should be considered somewhere in NEPA regs.

      Reply
    • Since this is supposed to be based on agency experience with prior similar projects, I assume the correlation with size would be examined as part of that.

      Reply
  3. Some of this is certainly worth considering, but I don’t like the fact that 30% of actions having significant effects would be categorically excluded from an EIS. I am not sure courts would either.

    I am surprised that there is nothing about existing caselaw based on the language of NEPA, which I assume would still put sideboards on how far things can change. (After all, we now know that courts get to decide what the law says, not agencies – Loper Bright.)

    Reply
    • Jonathan, I think that’s a great question. I have never seen courts parse through the FS NEPA regs and the CEQ NEPA regs (and existing case law) and go back to the statute, but I have seen only a microcosm of cases. Maybe others have?

      Reply
      • I think I recall cases that don’t rely solely on regulations, maybe from the early days of NEPA. And I think I recall that the CEQ regulations drew from prior court decisions. (I’m not going to fact-check my recall right now.) I do think that taking authority away from CEQ and spreading it among all the federal agencies that must apply NEPA is going to lead to horribly inconsistent approaches to the law, which courts will find they have to try to harmonize based on what they think it says. (I’ll advise my 1-year-old grandson to consider this field of practice for his future career.)

        (I don’t know why I have to “choose” which of my email names goes in the “auto”fill, but sometimes this one slips in.)

        Reply
        • I agree on the inconsistency issue. I think I read somewhere that the idea would be that CEQ’s role would be to ensure consistency.

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  4. A review of sorts using the thing as posted on the IFP site, not the selections above. There are 1) reasonable ideas, 2) unreasonable ones, 3)aspirational poorly defined ones, and 4) things that might be errors? I put this one last to not be rude out the gate.

    1) Reasonable: Level of federal control. Taking this into the FS realm it frankly would change very little of what we do.

    Also fairly reasonable is the baseline guidance on what could constitute a CE, with the possible exception of acreage. 5 acres on a Missouri wind farm and 5 acres of the Grand Canyon aren’t fungible, this is the kind of aversion to site-specificity that I worry is a frequent thing in NEPA “reform” from CBM to permitting reform types.

    The alternative analysis angle is interesting, as it latches on to the reasonable point that agencies still have objectives to accomplish and NEPA shouldn’t necessarily be politics / policymaking by another means.

    2) Less reasonable: While the ministerial-only piece appears to be heavily directed towards minerals which are a hobbyhorse for this crowd, and I mention this as the NEPA process for mineral extraction is often a controversy flashpoint of precisely the sort contemplated in the drafting on NEPA (Lynton Caldwell’s writings later in life would confirm this, I think). When they state that “ensuring standard statutory/regulatory compliance” with no authority to deny should mean no NEPA, I take that as angling towards no NEPA on a substantial portion of mineral and extractive uses. No NEPA process for these would, I think, cut strongly against the classic twin aims of the statute.

    The “normally” thing: “This threshold replaces previous interpretations requiring near-certainty of no significant impacts, recognizing that if a substantial majority of similar actions have proven benign through actual implementation, the category can reasonably be classified as “normally” having no significant effect.” <- this seems to tell towards the fact that this is being drafted by individuals who have never actually worked with the statute. I know that sounds a bit harsh but "near certainty" of no significant impacts appears to be a quixotic target they've created to make the process seems less reasonable, when compared to the actual drafting of FONSIs. That's not… how it works? I don't know how else to say it. This whole part seems to rely on a somewhat fallacious type of reasoning about how environmental impacts occur and are analyzed. We're never exhaustively proving no significant effects, we're drafting an educated guess based on data and mitigations, speaking realistically.

    3) Reasonable but poorly defined measures: As Rich noted above, the NEPA process is an umbrella under which other compliance measures get thrown, and no changes to those will result in less-than-expected changes to timelines. Politically, I think this is by design, and going after NEPA is easy because of the abtruse and vague nature of procedural stuff and people's frustration or disinterest in it. Going after, say, ESA would be less politically palatable.

    The FONSI definitions: these aren't bad (who wants to go to bat for context and intensity, those vague and messy concepts) but I don't know if they are as revolutionary as one might hope…
    "Substantial magnitude: Exceeding minor or routine environmental changes" <- defined according to what kind of baselines?

    "Inadequate existing mitigation: Impacts that persist despite standard, widely used measures or compliance with existing regulatory thresholds" <-

    "High likelihood: Based on probable, non-speculative outcomes, and proximately caused by federal action" <- inviting litigation for sure, in terms of nonspeculation. Climate change anyone? Maybe they're hoping the SC will neuter cumulative effects in the seven county case.

    Overall, significance remains largely in the eyes of the beholder here, on my read.

    4) Errors, maybe? "With these measures, the Trump administration has thrown out decades of NEPA regulations and related case law." <- is this how case law works? Same for the next sentence. "CEQ’s NEPA regulations and related court decisions have dramatically expanded NEPA’s reach far beyond its statutory mandate" <- the statutory mandate is what courts say it is, no? While I'd buy the argument that NEPA is larger than the original CEQ anticipated it being (see, for example, the classic 40 questions and guidance on document length) I don't buy the framing here.

    "The current passive approach, in which agencies independently decide when to update their categorical exclusions, has led to stagnation." <- in the case of the FS this is simply categorically (heh) false and has been under the last four administrations at least. Now we get litigated all the time on them and lose them occasionally, but again this just looks like framing to attempt to make it look like bureaucratic inertia / ineptitude. I don't have the numbers in front of me but the FS has promulgated what, dozens of CEs and adopted nearly as many in the Trump 1 / Biden admins alone?

    N.B., as I said elsewhere, sources of ideas matter. The fact is these are ideas put forth by groups that are deregulatory by mission. The FS, is, by mission, a regulator of natural resources (in addition to a producer of outputs). To the extent there are reasonable ideas here (regulation needs to work, after all), one should carefully consider why they care about national forests and if the agenda of deregulatory groups can sustainably be embraced without imperiling the very thing we all here ostensibly care about. Would, given sufficient latitude, national forests administered as public lands open to all exist in a world where these folks made the policy? No. Same for PERC. At least, I don't believe them. Take that for what it is.

    Reply
    • Thanks for the detailed analysis, and looking at the whole paper Anonymous!
      1. My experience with these folks is that they are part of the broader “permitting reform” movement, which tends to include solar, wind and transmission as well as mining for strategic battery related minerals and so on. Unless you think solar and wind are “extractive”?
      2. I think if you looked at the CEs, even just for the FS, it’s more of a dialogue between administrative and legislative CEs. For example, there was the HFI CE which we worked on when I was in DC, it got struck down in court and then HFRA had a CE with sidebars, and so on. I don’t think that there are “dozens” promulgated, though, administratively, does anyone have a list?
      I think there’s something to be said for harmonizing CEs across agencies and also what we call “extraordinary circumstances” but others call (maybe) “integral elements.” https://www.dhs.gov/sep/ephp/nepa/dhs-catex-adoptions/18-new-ce
      I think it’s interesting that these DOE/DHS CEs incorporate the idea of “already disturbed.”
      ****************
      Jon and I always get into the discussion of NFMA the statute vs. NFMA the current regs and case law. Maybe that’s simply a language difference. Maybe what they meant is not the “statutory mandate” but “the plain English reading of the statute.” Jon and I get into that specifically around the diversity provision.

      “provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives, and within the multiple-use objectives of a
      land management plan adopted pursuant to this section, provide, where appropriate, to the degree practicable, for steps to be taken to preserve the diversity of tree species similar to that existing in the region
      controlled by the plan;”

      Is what looks to me like “regulatory embroidery around the statutory language” included by definition in the statutory mandate? And I don’t think the courts have answered the question because no one has challenged that part of the 2012 rule (I don’t think, maybe they have.)

      Reply
      • The one case I can think of against the 2012 Planning Rule was by industry groups and it was dismissed for lack of standing (by now Supreme Court Justice Brown). Diversity was specifically at issue, and the court did comment (dictum) on the validity of the rule: “In fact, the Rule calls for exactly this type of ‘integrated resource management,’ directing the Forest Service to develop plans that provide for multiple uses “[w]hile” meeting the needs sustainability and diversity.”
        https://scholar.google.com/scholar_case?case=12843285616042954763&q=FEDERAL+FOREST+RESOURCE+COALITION&hl=en&as_sdt=3,27

        Here is an earlier substantive take on the viability provisions of the 1982 planning regulations: “In fact, the statutory language is so qualified that ‘it is difficult to discern any concrete legal standards on the face of the provision.’ Charles F. Wilkinson and H. Michael Anderson, Land and Resource Planning in the National Forests, 64 Or. L.Rev. 1, 296 (1985).” (Cited in this 1992 case: https://scholar.google.com/scholar_case?case=8084760140164488387&hl=en&as_sdt=6,27, where plaintiffs wanted to see a more rigorous scientific definition of diversity.)

        Maybe Loper Bright will encourage parties to try again, but this opinion suggests courts really have not much basis for overruling anything.

        Reply
  5. From our 2021 paper in JOF on NEPA: “On average, any single NEPA analysis takes less than a year to complete: the median time to complete a NEPA project is 131 days. The median time to complete a CE is 105 days, an EA is slightly more than 1 year (392 days), and an EIS is less than 2.5 years (882 days)”
    Source: https://academic.oup.com/jof/article/118/4/403/5825558
    So a CE takes less than 1/3rd of the time of an EA, but of course, we don’t know how fast projects that currently require an EA would go through if there was a CE for them, since presumably on average such projects are more complicated than those projects that already qualify for a CE, and presumably some of the time frame is driven not merely by regulatory requirements, but also by the inherent complexity of the proposed project.

    Reply
  6. From our 2021 paper in JOF on NEPA: “On average, any single NEPA analysis takes less than a year to complete: the median time to complete a NEPA project is 131 days. The median time to complete a CE is 105 days, an EA is slightly more than 1 year (392 days), and an EIS is less than 2.5 years (882 days)”
    So a CE takes less than 1/3rd of the time of an EA, but of course, we don’t know how fast projects that currently require an EA would go through if there was a CE for them, since presumably on average such projects are more complicated than those projects that already qualify for a CE, and presumably some of the time frame is driven not merely by regulatory requirements, but also by the inherent complexity of the proposed project.

    Reply

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