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NEPA Restored and Strengthened under Biden Administration

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By Jason Kahn

The National Environmental Policy Act (NEPA) was signed into law in 1970. This law required all federal agencies to create the means to review all agency actions and decisions to maintain conditions in which man and nature can exist in harmony. The President’s Council on Environmental Quality (CEQ) was also established as a review board that oversees an agency’s actions to ensure the agency meets its obligations under NEPA. The agency must consider the environmental and human health impacts of a project locally and regionally–the direct and indirect impacts of any project seeking a federal permit on public or private land.

For almost 50 years and through seven different administrations, the NEPA rules were consistent and unchanged. In 2020, however, the Trump Administration removed the “cumulative impact” review and the “indirect impact” review from the process. This change effectively made the floor for environmental impact the new ceiling. The old bare minimum standard was lowered and set as the new high bar. No longer could climate change or endangered species be considered when making decisions on a permit’s EIS. This change was met by cheers from mining and energy interests as well as those seeking permits to build power plants that burn garbage, tires, and fossil fuels. Its enactment was met with little reaction by the public amid the more grandiose national and global crises the Trump Administration set in motion.

Now two years after those changes took effect the Biden Administration has replaced the original language to NEPA and strengthened some of its provisions. The new administration broadened the definitions of “cumulative impacts,” “indirect impacts,” and “direct impacts.” The CEQ effectively eliminated the text of the 2020 changes to NEPA and CEQ from the regulatory text.

The final decision reestablishes the requirement of “Purpose & Need.” The language in Phase 1 of the decision eliminates the most controversial elements of the 2020 rules and establishes an agency’s authority to make conforming changes to the definition of “reasonable alternatives.” In short, the purpose and need section of an EIS explains why a proposed action is being pursued and provides boundaries for a range of reasonable alternatives to be considered by an agency. It eliminates the ambiguity in the applicant’s goals and the agency’s authority. As such the CEQ explains that “agencies should have discretion to base the purpose and need for their actions on a variety of factors, which include the goals of the applicant, but not to the exclusion of other factors.”

Over the next months, the CEQ will propose further revisions to the 2020 NEPA regulations. Known as Phase 2 changes, these changes will address an agency’s considerations during the EIS process to include climate change and environmental justice through documents that provide guidance to agencies. We will follow the revision process and keep the “Healing Nature’s Wounds” action log updated. (This issue was #22 in our Healing Nature’s Wounds campaign.)


Sources:
National Law Review June 1, 2022
Biden Administration Walks Back Key Trump Era NEPA Regulation Changes
https://www.natlawreview.com/article/biden-administration-walks-back-key-trump-era-nepa-regulation-changes
Rachael L. Lipinski
Jenna R. Mandell-Rice

SD Supra
Biden Administration Restores More Stringent Environmental Review Under NEPA
https://www.jdsupra.com/legalnews/biden-administration-restores-more-9921955/
Pierce Atwood LLP

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