Today, I sent Department of Interior my comments (below) on the “interim final rule” on their Implementing Regulations for the National Environmental Policy Act.
Thank you for accepting comments on this proposed “interim final rule,” even though you state it is not necessary that you do so. My comments reflect 30 years of experience as a NEPA practitioner and Section 106 specialist in transportation. I am not a lawyer.
I find it completely baffling what this “interim final rule” is. Is it regulatory, guidance, both, or neither? You make repeated claims that this is not regulatory, that it is mere guidance and procedures. If they are binding, then they should have been put through the regular regulatory process. If they are not binding, not legally binding, then you have made no improvements to the process you had before. I presume that you intend them to be procedures and guidance, which is why I am not providing any specific comments on any of the recommendations. I will leave it to the courts to sort out what follows the law and what does not, because it will be the courts that will have to clean up the mess you are creating. Lawsuits and court challenges are what have dogged DOI, with their lengthy delays. You are ensuring this continues.
Parallel to this “interim final rule” is the interim final rule for FHWA, FRA, and FTA. Those provide minor changes to previous regulations under 234 CFR 771, and largely limit changes to what is required to conform to the Fiscal Responsibility Act of 2023 and the withdrawal of CEQ regulations in response to a Supreme Court Decision. That interim final rule remains a useful regulatory tool for FHWA, FRA, and FTA actions, which have not weathered the controversy that other Federal Agencies have endured. I would argue that strong and enforceable Federal regulations provide a predictable playing field for all actors. This point is demonstrated especially by FHWA, which not only spends many billions a year on transportation projects, but oversees many billions more in funding by state and local agencies. While substantially different from the Department of Interior in that it is not a land-owning and managing agency (with a tiny exception of FHWA headquarters in DC), FHWA does have substantial impact across the nation in virtually every municipality. That projects are delivered largely without controversy and in a timely way demonstrates the wisdom of firm regulatory oversight, while still maintaining great flexibility in implementation. Your protestations that the regulations themselves are the problem are simply not supported.
Yes, NEPA is a procedural law, but you have misrepresented it as merely a check-the-box process. It is anything but. To quote Justice Sotomayor concurring in the same Seven Counties decision you are so fond of referencing, “NEPA requires agencies to prepare and publish a ‘detailed statement’ reviewing the environmental impact of any major federal action. 42 U. S. C. §4332. That ‘action forcing’ requirement serves dual purposes, ensuring both that an agency considers a project’s environmental consequences before deciding whether to approve it, and rendering the agency publicly accountable for environmental harms it decides to tolerate…The point, as this Court has recognized, is not merely that an agency produce a report but ‘that environmental concerns be integrated into the very process of decision-making.’…In that way, NEPA’s procedural requirements advance Congress’s aim that the Federal Government “use all practicable means [to ensure] that the Nation may . . . fulfill the responsibilities of each generation as trustee of the environment for succeeding generations.” (my emphasis)
The Department of Interior could have followed the lead of a sister agency and promulgated sensible regulations that follow the spirit and letter of NEPA. Instead, it has tried to thread the needle by issuing procedures and guidance that it intends to use as regulatory (?) but without the messy business of following the process for issuing regulations. In both the tone and tenor of this “interim final rule” and its purported guidance and procedures, the Department of Interior is bypassing public input and ramrodding a process that may or may not meet the letter and spirit of the National Environmental Policy Act, which still remains on the books. Who knows? I fear that this “interim final rule” is a preview of how DOI intends to consider its actions, significant or otherwise, to check-the-box in a rush toward a decision, the public and environment be damned.
This “interim final rule” should be withdrawn. You should restart with a regular regulatory process.
I, Beckerman, not Robot 