SEACC Policy Review: Update to the Regulations Implementing the Procedural Provisions of the NEPA

In this 50th year of NEPA, it is particularly egregious that the Trump Administration has chosen to dismantle the nation’s bedrock environmental law.

SEACC has identified the following categories of major changes that are the most troubling:

New limits on the scope of the process

• The proposed rule sets time limits for environmental assessments and environmental impact statements, which means complex projects may not receive sufficient review and input. The risks in speeding up the NEPA process may result in environmental studies and alternatives that are inadequate or incomplete with environmental concerns such as contamination, endangered species, and other impacts going unidentified. (§ 1501.10)
• The proposed changes no longer require that all reasonable alternatives be rigorously and objectively evaluated” – the word “all” has been deleted. §1502.14(a) vs. 40 C.F.R. §1502.14(a))

Implications:

This means federal agencies can decide what alternatives are reasonable and refuse to evaluate alternatives that better consider the interests of local communities over the interests of a developer or industry.

Public Participation is Eroded

One of the signature strengths of NEPA is that it allows the public a say in how federal lands are developed. By thoroughly engaging the public in project decision-making, through environmental review of proposed alternatives, NEPA ensures the public interest is reflected in the final decision. But proposed changes to NEPA under this rulemaking could erode public participation in how public lands in our country are developed. Specific changes to public involvement include:

• Criteria to hold or sponsor public hearings or meetings where there is substantial interest or environmental controversy has been deleted. ( § 1506.6(c) vs. 40 C.F.R. § 1506.6(c)(1).)
• New language allows the lead agency to set the schedule and milestones for review, potentially enabling the lead agency to set a schedule that cannot be met by tribes and other cooperating agencies or the public. (§ 1501.7(i))
• New commenting requirements state that the public must cite page numbers and supporting studies and other information to back up their comments. (§ 1503.3)
• Proposed changes prohibit consideration of new issues that may be raised after a public comment period has concluded for federal rulemaking actions. (§1502.9(d)(1))
• Currently, the rules instruct agencies, “to the fullest extent possible . . . [e]ncourage and facilitate public involvement in decisions which affect the quality of the human environment.” CEQ is now proposing to strike that underlying policy. (§1500.2 vs. 40 C.F.R. §1500.2(c))

Implications:

• Deleted language implies that when roads, mines or timber sales are being proposed, Alaskans may not get the opportunity to be heard at public meetings if there is public concern or controversy.
• If new information affecting a project comes to light after a public comment is closed, the federal agency doesn’t have to consider it for a rulemaking such as the Alaska Roadless Rule. It will simply become effective immediately.

Requirement to Assess Cumulative Effects is Deleted

EPA has noted that, “Evidence is increasing that the most devastating environmental effects may result not from the direct effects of a particular action, but from the combination of individually minor effects of multiple actions over time.” (https://www.epa.gov/sites/production/files/2014-08/documents/cumulative.pdf)

In a 25th anniversary report in 1995, CEQ wrote “perhaps the most significant environmental impacts result from the combination of existing stresses on the environment with the individually minor, but cumulatively major, effects of multiple actions over time.” (https://ceq.doe.gov/ceq-reports/annual_environmental_quality_reports.html)

However, the proposed rule no longer requires a hard look at the cumulative effects, nor does it distinguish between direct and indirect effects, and does not require a look at impacts that are geographically or temporally distant. (§ 1508.1(g)(1))

Implications:

• The impacts of a project in an area already suffering environmental degradation would not be assessed in conjunction with those preexisting impacts. This would adversely affect environmentally vulnerable communities, where impacts from multiple prior projects would not be considered with a proposed project.
• In a specific example from the Tongass, impacts of a timber sale on winter deer habitat would no longer be required to consider the cumulative effects of past timber harvests on deer habitat in conjunction with the proposed sale. Whereas currently baseline deer habitat conditions are set at 1954 prior to the start of historical timber harvests, a proposed project under the new rules would apparently set a baseline at present day conditions and ignore past logging impacts on deer habitat.
• Likewise, an EIS for a timber sale on the Tongass would no longer need to look at impacts from other current or reasonably foreseeable actions in the vicinity, such as state or local road projects, state timber sales, or a proposed mine.
• The impacts of climate change would no longer be required to be assessed. This could lead to projects that are at risk from climate change impacts, such as thawing permafrost, wildfires, and flooding, as well as projects that will worsen climate impacts, such as fossil fuel emissions and deforestation. It also means that ongoing impacts to a community or ecological habitat will not be considered in conjunction with the direct impacts of a project on that same community or habitat. Therefore, multiple unrelated factors that can weaken resilience will not be considered together.
• The cumulative effects of road construction and habitat fragmentation from logging over the past 50 years on the Tongass would not need to be assessed in conjunction with proposals to construct new roads or issue timber sales.
• Furthermore, by removing the assessment of cumulative effects from the NEPA analysis for any project, the requirement to provide mitigation measures to address such effects is also removed because they were never identified in the first place.

Non-major federal actions would be exempt from NEPA.

The proposed rule seeks to narrow the scope of federal actions that require a review. The result would exempt certain “non-major federal actions” from NEPA. Even a non-major federal action with significant environmental impacts will no longer require NEPA review. In addition, the definition of what is considered a non-major federal action is not precisely defined. (§ 1507.3(c)(1))

Implications:

• With neither a requirement to look at cumulative impacts nor carry out NEPA on minor federal actions that have significant impacts, the additive impacts over time from multiple “minor” federal actions will never be assessed.

Project developers can write their own NEPA documents

While under current NEPA law, federal agencies must prepare environmental impact statements (EIS), the proposed rules allow project proponents to draft their own EIS rather than having the federal agency conduct these important studies. The likely outcome is that these documents will be biased toward the developer’s desired alternative and will fail to take a full and hard look at the impacts or explore reasonable alternatives. (§ 1506.5(c))

Implications:

• Mining companies will be able to prepare their own EIS’s leading to environmental analyses biased in favor of their project and proposed alternative and minimizing impacts.

Impacts of the proposed changes to NEPA will be felt most profoundly in Alaska

Alaska, the largest state in the union, the state with the most federal land, and thus where an extensive number of NEPA reviews occur, is disproportionately affected by the proposed rules.

Take Action:

For Southeast Alaska in particular, the federally managed Tongass National Forest dominates the region and undergoes a disproportionate number of NEPA reviews. Our comment letter specifically requests that the Council on Environmental Quality extend the public comment period to 180 days and conduct a federal hearing in Alaska to hear concerns from the people who will be most affected by the proposed rulemaking.