Davis Wright Tremaine LLP
January 10, 2020
On January 8, 2020, the Trump Administration proposed streamlining the National Environmental Policy Act (NEPA) regulations for evaluation of the environmental impacts of major projects, in part by removing the existing requirement to consider “indirect,” “direct,” and “cumulative effects.” Instead, the proposal narrows the definition of “effects” to be evaluated to include only those that are “reasonably foreseeable” and having “a reasonably close causal relationship to the proposed action or alternatives.”
After publication in the Federal Register, the proposed regulations will be open for public comment for sixty days. Given the expected scale of response, publication of the final regulations is unlikely before fall 2020, and the new regulations will almost inevitably face court challenges arguing that the narrowing is inconsistent with the statute itself.
Another in a List of Executive Orders
The Trump Administration has been voicing its opposition to regulation of all types from its outset. Playing to its blue-collar base, the Administration has argued that environmental over-regulation has delayed major infrastructure projects by requiring years of environmental review, and generally held back the U.S. economy.
As we have previously discussed, Trump’s first executive order with that objective, issued January 24, 2017, was devoid of detail and largely hortatory. On August 15, 2017, President Trump issued another Executive Order intended to speed environmental review of infrastructure projects. That Executive Order was more detailed, but did nothing more than attempt to implement legislation passed during prior administrations.
Following that Executive Order, and a long string of court defeats over hastily crafted regulatory “reforms,” the Administration appeared to understand that there is no quick fix to what it perceives as over-regulation. The Administrative Procedure Act does not allow “quick fixes.” (See here for more information.)
Will It Actually Work?
How successful will the Administration be in its effort to greatly moderate one of the foundations of U.S. environmental law? This is the last year of the Administration’s first, and perhaps only, term. This is very late in the game, and even if a new regulation survives court challenge, it is likely to be in effect only after the 2020 election.
Likewise, the proposed regulation uses narrower, but not necessarily prescriptive, language in limiting reviews. Many commenters have considered the proposal’s greatest impact could be the elimination of consideration of the effects of the proposed action on climate change.
However, even if the courts approve the regulation, the practical effect of the change would still only become evident after many court challenges to specific application of the rules to new project environmental reviews. Moreover, many projects could remain subject to state environmental review requirements, which may continue to be informed by the earlier readings of NEPA.
On the other hand, this battle over deregulation has always appeared to be more about headlines than substantive change – Trump announced the NEPA proposal surrounded by construction workers. A real gift to the construction industry would have been a trillion dollar program to rebuild our crumbling infrastructure, regardless of the nature of the environmental reviews.
This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Mr. George and may not reflect the opinions of Synergy Environmental, Inc., Davis Wright Tremaine LLP or either of those firms’ clients.