My Comments on the Proposed NEPA Changes

I submitted comments to the Council on Environmental Quality on February 17, 2020 on the proposed changes to NEPA Regulations. My comments in their entirety are provided below. Needless to say, I wasn’t happy.

The Current NEPA Regulations

The Proposed NEPA Regulations

Comments are due March 10th and if you are inclined to make comments on these proposed regulations, I would strongly encourage you to prepare them as quickly as possible. Please feel free to use anything that strikes your fancy.

The following comments are made with respect to the Notice of Proposed Rulemaking, Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, Council of Environmental Quality (CEQ), Docket Number 2019-0003.  I make these comments as a practitioner in NEPA, Section 106 of the National Historic Preservation Act, and Section 4(f) of the US DOT Act of 1966 with over 25 years of experience at a State DOT.

NEPA is the singular environmental law in the country with 50 years of application and practice.  All of the other national environmental laws, and in practice many of the state environmental laws, point to NEPA which has acted as the umbrella environmental legislation for actions taken by Federal Agencies.  These proposed regulations weaken NEPA to such a large extent that they can only be seen as an assault on national environmental policy.  The proposed regulations should be withdrawn.

It is unfortunately necessary to remind the CEQ what the actual National Environmental Policy Act states:


Sec. 2 [42 USC § 4321]. The purposes of this Act are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality. (my emphasis).

You only need to compare the current Section 1500.1 with the proposed 1500.1 to see how far the proposed regulations diverge from the actual law and its sections.

The opening sentence of the current regulations states:

(a) The National Environmental Policy Act (NEPA) is our basic national charter for protection of the environment. 

The proposed regulations opens with:

(a) The National Environmental Policy Act (NEPA) is a procedural statute intended to ensure Federal agencies consider the environmental impacts of their actions in the decision-making process. 

The word protect appears in the current regulations 8 times as a verb.  In the proposed regulations, twice.

The shortcomings of the proposed regulations are numerous and fatal, contrary to the words and intent of the Act. Neither do they “advance the original goals of the CEQ regulations to reduce paperwork and delays and to promote better decisions consistent with the national environmental policy set forth in section 101 of NEPA” (sic).  In fact, the proposed regulations equate faster and cheaper with the goals of NEPA, leaving out the Law’s original intent to provide better decisionmaking (Section 102(C)).

My remaining comments are made in order of reference to the proposed regulations and not in order of importance.

1500.3. NEPA Compliance. The entire tone of the proposed regulations is hostile to the public’s role in commenting and treats participating agencies and the public as checkboxes that need to be filled out as quickly as possible.  The tone of the regulations could be summed up in the addition of a new Section 1500.3(c). Actions Regarding NEPA Compliance, which is not in the current regulations.  The section discusses at some length the role and timing of judicial review (upon lawsuit), and the potentials for bonds or other limiting security requirements to be placed on private parties (read the public).

With regard to Remedies under 1500.3(d), it is sometimes true that harm from the failure to comply with NEPA can be remedied by compliance with NEPA’s procedural requirements; however, there are times where harm is irreparable, especially when a project is approved and proceeds under faulty premises.  One only needs to look as far as construction of the Border wall in the Organ Pipes National Monument.  This project which had NEPA waived under the REAL ID law of 2005 has resulted in numerous destroyed and irreplaceable archaeological sites.  This controversial project is currently in the courts.  What can compliance with procedural compliances do to replace these archaeological sites, should this project be declared illegal? They are destroyed and the damage cannot be fixed.

1501.1. NEPA threshold applicability analysis.  This is a new concept that establishes a trigger to determine if NEPA analysis and related activity should be required at all. It creates a “minimal government funding or involvement” threshold, below which project planners would, presumably, not engage in a NEPA review. This is an unnecessary and potentially harmful test. First, under the current regulations, actions undergo a three-part test as to whether they have the potential for significant impacts.  Those that have been defined through a separate process of rulemaking as not having significant environmental impacts are considered. Categorical Exclusions (CE).  Yet, even the CE’s undergo a limited environmental analysis to ensure they fit the exclusion tests.  The point is that all actions are subject to EPA, but not all actions require intensive environmental analysis.  Secondly, NEPA applies to all Federal agencies (Section 102).  A threshold analysis that is premised on an agency lacking authority to consider environmental effects (1501.1(a)(2)) goes against the letter and spirit of the law.  Finally, agencies often follow multiple overlapping laws in environmental compliance.  The role of NEPA is integrating and coordinating other agencies with legal responsibilities.  Parsing out whether NEPA applies or not based on whether there is another relevant law rips the NEPA umbrella apart and creates a confusing patchwork of responsibilities.

What constitutes a major federal action is not defined. The language surround this concept mostly discusses what is not a major federal action, but even these key concepts are not clearly laid out.  There is a misunderstanding within CEQ that major equates to percentage funding.  This would suggest that Federal agencies that only have permitting control should not have oversight over privately funded projects that require permits, such as USACE permits.  Permitting is an important Federal action and falls squarely within the mandates of NEPA.  We can see today the great environmental harm from pipeline construction in places like Pennsylvania, my home state, where Congress in its infinite wisdom saw to severely limit permitting control by the USACE through the Energy Policy Act of 2005 and its Halliburton Rule.  These changes to NEPA regulations would have a similar effect but in a much wider arena.

In addition to permitted projects, increasingly public-private-partnerships (P3) are emerging as a major means by which infrastructure is addressed.  P3 sponsors are generally disinterested in following environmental laws and regulations and are only held to account by the federal agency under which they are operating.  But for NEPA and its implementing regulations, P3 projects would wholly disregard environmental considerations.  I saw this firsthand in Pennsylvania with the Rapid Bridge Replacement P3 Project, where the design firms had to be repeatedly reminded of their environmental responsibilities during design and later their mitigation commitments under construction.  Although ultimately, the contractors followed NEPA, it was only because of pressure by FHWA and PennDOT.  This particular project had almost no Federal funds involved and would not have met the test of a major Federal action, even though it involved the replacement of 558 bridges across the state at a cost of nearly $1b.

These concepts also disregard the potential for significant impacts to historic and archaeological resources, when projects fall below this line of federal funding.

1501.2. Apply NEPA early in the process. The current language of “shall” and “possible” should be retained instead of watering it down to “should” and “reasonable.”  This is especially relevant if the goals of CEQ are to reduce the time for preparation of NEPA documents and review.  Although, agencies need the discretion to structure the timing of their NEPA processes to align with their decision-making processes consistent with their statutory authorities, agencies also need to be reminded to begin NEPA early.

1501.4. Categorical exclusions. Section 1501.4(b)(1) is probably incorrect as written.  Extraordinary conditions that could mitigate to avoid significant effects are normally treated as a mitigated FONSI.  You really need to do the analysis to ensure that the mitigation will remove the significant effects. This is not normally within the purview of a categorical exclusion.

1501.8. Cooperating agencies. There are a few positive changes to the proposed regulations, as you should expect in any revision, most notably the explicit elevation of Tribes to cooperating agencies (See 1501.8(a)).  However, even this particular improvement is diminished by not treating Tribes as sovereign entities that require government-to-government relations.  Putting Tribes in with other state and local governments is a common mistake in consultation and violates treaty law.  Finally, the lack of consultation with Tribes in the formulation of this proposed regulations undercuts any positive feelings anyone should have regarding the change.  If it’s good enough to be put into the proposed regulations, why wasn’t it good enough to put into practice during its development.  CEQ, heal thyself!

1501.10. Time limits.  Under Section 1501.10, EIS’s would be completed within 2 years of NOI to ROD. EA’s would be completed within 1 year of decision to start to publication of EA.  It is unclear what formally time dates a decision to start an EA, and the ultimate decision of the EA, either a FONSI or development of an EIS, is unstated.  The 2 years for the EIS is too limiting.  An EIS is being prepared because there are significant environmental impacts.  Treating them like a hoop to jump through disrespects the Law and the role the public has in decisionmaking.  But time limits for an EIS or EA are just one place where the role of public input is diminished.

The proposed regulations repeatedly argues that the timelines for completing environmental reviews can be very lengthy, and the process can be complex and costly. This has not been my experience in over 25 years of NEPA work. In the state DOT where I worked, 97-98% of all projects were categorically excluded.  For the majority of these, the NEPA effort took days, not weeks, and was completed on a one-page form.  However, even in that expedited and programmatic format, necessary environmental issues were considered.  For smaller projects, the single factor in extending the NEPA timeframe was lack of project design preparation on the part of the design engineers – they didn’t know what they wanted to build to a level sufficient to understand the environmental footprint.  For larger projects, the single factor in extending the time to the ROD was fiscal. Projects were put on the shelf mid-way due to lack of funds.  The second factor after funding was the simple fact that these were complex and controversial projects with numerous environmental impacts.  These projects required careful analysis and full public participation, which could be rushed.  We would find that if the public was squeezed out of the process, usually due to deadline pressures, we would see them a bit later in court.  Rushing to meet a project deadline always ensured the project took longer to build than it needed.

1502.7. Page limits. As far as page limits go, the proposed regulations will be completely ineffective.  Yes, the EIS can be limited to 300 pages, but the full document will be as long as ever.  In order to meet time limits, the content will be (poorly) summarized into the body of the EIS, with all of the additional material added as appendices. The proposed time constraints (see above) will only put additional time pressure on the production of the EIS, most likely making it longer, more poorly written, and organizationally ragged.  Secondly, plain writing has been an EIS requirement for some time (1502.8 in the current regulations). Instead of mandating that the statements be written in “plain language,” you would have better luck mandating that any engineering firm that is contracted to produce an EIS be required to hire professional technical writers to produce the text. Yes, most EIS’s are led by large construction engineering firms, the vast majority of which do not value clear writing.  In theory, if you had enough engineers on enough typewriters with enough time, eventually you could produce a readable EIS.  In theory.

1502.13. Purpose and need. The changes to Purpose and Need (1502.13) are misguided and unnecessary.  Ultimately, the Federal agency is the responsible party for compliance with NEPA, not the applicants.  The project need is the basis for establishing the alternatives and what constitute all reasonable alternatives.  The goals of the applicant are not relevant to the analysis, and are frequently subject to local political pressures to build, build, build regardless. The Federal agency’s authority is either there or not there, and not subject to parsing.  I state this as a 25-year employee for an applicant for Federal Funds, at a state DOT.  The FHWA has had the ultimate responsibility for determining what is purpose and need, ultimately to the DOT’s benefit and the public’s.

1502.14. Alternatives including the proposed action. The standard of all reasonable alternatives as noted in the current regulations should be retained.  All reasonable alternatives is a much higher standard for consideration and ensures that analysts consider alternatives that might not otherwise be considered. It is a useful tool and forces the agency to sometimes think creatively and productively.  Again, I put my 25 years of NEPA experience forward as seeing additional alternatives developed when all existing studied alternatives were found wanting.  Sometimes, an agency has to turn over extra rocks to get to a good decision.  The idea of limiting the number of considered alternatives to 3, one of which is usually no-build (not completing the project), is just plain silly.

1502.24. Methodology and scientific accuracy. The proposed regulations would require agencies to “make use of reliable existing data and resources and are not required to undertake new scientific and technical research to inform their analyses.”  This allows agencies to avoid ensuring the professional integrity sometimes needed in environmental analyses, when existing data is missing or deficient.  This is particularly true in archaeology, where actual archaeological resources may be known only by conducting new scientific surveys and studies. The entire knowledge base of archaeology is premised on the fact that very few existing archaeological sites are known prior to intensive investigation of an area.

1508.1 – Definitions

Effects. The removal of the concepts of “direct effects,” “indirect effects,” and “cumulative effects” from the proposed regulations simply violates the language of NEPA, specifically in the purpose of the Law, as well as Policy:

“to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may –

3. attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences; “ (my emphasis)

Under Section 102, “all agencies of the Federal Government shall – 

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on — 

(iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity,…” (my emphasis)

It appears that the purpose of narrowing the definition of effects is more a nod to the fossil fuel industry than anything else and an attempt to preclude using NEPA to address the current climate crisis, despite the climate crisis being the existential environmental issue of this century. There is no other explanation.

Human Environment. This is an overly narrow definition for Human environment and disregards prehistory in  environmental analysis.  The current definition should be retained. Investigation of the archaeology within a project connects past generations with present and future generations.  Only considering present and future generations in the discussion is to erase our past.

Significantly. The current definition of significantly (1508.27) has been removed and not replaced by any comparable guidance.  Significance is a central concept to NEPA and the triggering requirement for preparing an Environmental Impact Statement, i.e. significant environmental impacts.  Not defining significance in regulations that entirely revolve around this concept is irresponsible.  The CEQ has a legislative responsibility under Section 204(4) to:

“develop and recommend to the President national policies to foster and promote the improvement of environmental quality to meet the conservation, social, economic, health, and other requirements and goals of the Nation” (my emphasis)

At the very minimum, CEQ is obligated to define significant environmental impacts.

The current regulations appear adequate for our current needs and do not require the severe makeover presented in the proposed regulations.  Indeed, the proposed regulations acknowledge that “over the past 4 decades, CEQ has issued over 30 documents to provide guidance and clarifications to assist Federal agencies to more efficiently and effectively implement NEPA.” 

These proposed regulations are badly informed and threaten the health and well-being of all Americans.  They should be withdrawn.