On October 6, 2021, Fred Wagner was quoted in Inside EPA on the White House Council on Environmental Quality’s (CEQ) new proposed rule that floats three core changes for how agencies implement the National Environmental Policy Act (NEPA). The changes include restoring requirements to consider direct, indirect, and cumulative effects of major federal actions; restoring requirements to consider less-harmful alternatives to those actions; and clarifying that the CEQ rules are the floor, not the ceiling, for agency-specific implementing rules.
According to the article, the restoration of the broader definition of effects is most crucial for climate-related matters, but CEQ’s “phase 1” proposal does not mention several broader aspects of the Trump rule, which the council plans to address in a phase 2 rule to be issued next year. In the meantime, the majority of the 2020 rule will remain in effect.
Wagner says the proposed changes are broad but nuanced, written in a way “that doesn’t necessarily deal with them head on.” Of the examples cited in the proposal for how direct, indirect, and cumulative effects can be considered, some “specifically point out that agencies could and should look at the effects of combusting fuel for a project that is going to advance oil and gas,” he says.
Also, because the rule clarifies that the CEQ rules are a floor for agencies’ requirements, it sends a strong message that agencies can do more on climate and other matters. “Go for it, you have the authority,” is the overarching message to agencies in the Biden administration that will want to take such steps, Wagner adds. Furthermore, the proposed requirement to consider less-harmful alternatives also sends a strong message that agencies can look at non-fossil fuel alternatives to fossil fuel-based proposals, he says.