March 10, 2020
On January 10, 2020, the Council on Environmental Quality (CEQ) proposed to update its regulations implementing the procedural provisions of the National Environmental Policy Act (NEPA). The proposed revisions would modernize the regulations with the objective of producing more efficient and timely NEPA reviews. Among other changes, it would establish a presumptive time limit for environmental impact statements and environmental assessments, require that existing page limits bind unless overridden by a senior agency official, and cabin the scope of reviews by clarifying certain definitions.
We support improving the efficiency and timeliness of NEPA reviews. The current NEPA implementation has resulted in reviews that take too long, that are so encyclopedic as to become unhelpful for decision making, that are vulnerable to “weaponization,” and that generally yield ineffective Federal decision making. Our comment highlights these issues with the current regulations.
Our comment also discusses the importance of effective Federal decision making. Ineffective Federal decision making is bad for the environment, because it means that projects that could improve the environment, such as clean infrastructure, are delayed along with all the others. Ineffective Federal decision making is also bad for the economy, contributing to long-term stagnation and to ineffective short-term fiscal policy.
The proposed rule is an enormous improvement over the status quo, and we support most of the proposed changes. We also suggest a handful of further improvements:
- Agencies should routinely assess whether new categorical exclusions should be developed.
- The time limits for environmental impact statements should reflect the work already done when they are preceded by an environmental assessment.
- A senior agency official should approve a new page limit for any environmental impact statement longer than 150 pages, not 300 pages. That official should not normally approve a page limit greater than 300 pages even for projects of unusual complexity or scope.
- The provisions on incomplete or unavailable information should be clarified to underscore that NEPA does not require agencies to conjure new data when none exists.
- The regulations should not restrict otherwise-legal private action merely because a private actor is waiting for a Federal permit in an adjacent domain.
- Unenforceable and possibly unconstitutional provisions relating to legislative proposals should be removed.
- The definition of “major Federal action” should be refined to give voice to the word “major” by importing criteria for a “major rule” from the Congressional Review Act.
We are grateful for the opportunity to comment, and we hope our input assists the Council as it modernizes the regulations that implement NEPA.
CGO scholars and fellows are occasionally invited to provide testimony to public hearings and legislative meetings. They also occasionally conduct independent analyses addressing government policies and proposals which are submitted to agencies as public interest comments. These testimonies and comments are designed to assist policymakers as they study and explore issues. The views expressed in testimonies and comments are those of the author(s) and do not necessarily reflect the views of the Center for Growth and Opportunity at Utah State University or the views of Utah State University.