On March 16, 2022, Fred Wagner was quoted in Inside EPA on the White House Council on Environmental Quality’s (CEQ) draft final phase 1 National Environmental Policy Act (NEPA) rule, and the pushback CEQ is facing from federal agencies warning the rule fails to meet administrative law requirements and will only sow confusion and cause delays of critical infrastructure projects.
According to the article, CEQ sent its draft final rule to the Office of Management & Budget (OMB) on February 11, 2022, and sources say it does not differ much from an October 7, 2021 proposal to scale back three main pieces of the Trump administration’s massive 2020 rewrite of NEPA implementing rules, the first since 1978. It reinstitutes requirements to consider direct, indirect, and cumulative effects, as well as less-harmful alternatives; it clarifies that the scope of a project’s “purpose and need” is not the applicant’s decision; and it allows agencies to go further than CEQ in implementing their own NEPA rules, a move Trump had barred.
Wagner notes it is “not just agencies” raising concerns. “I have clients who are involved with projects” who worry that “the rules are going to change, or may not change, depending” on circumstances. “There’s a whole bunch of confusion there.” CEQ wanted to release something quickly, he notes, but “breaking it into phases was a mistake. They needed to, for lack of a better word, suck it up and get out what they needed to do. This is just creating questions.” However, despite the difficulties, Wagner does not believe CEQ will change course, though “it would be good to have a cut-off date” for the 2020 rule.
A separate but related hurdle is that environmentalists are raising broad climate and environmental justice (EJ) concerns in comments on new NEPA reviews, albeit in the absence of new rules, teeing up potential new legal challenges when those reviews are final if they do not adequately address those issues.
“Everyone is waiting for the other shoe to drop,” Wagner says. “Absent a bit more clarity from CEQ and the agencies, that will continue to be a challenge and it will be up to the courts” to determine what NEPA required. That means many of these questions will be resolved by the courts “over the next two to four years,” which is “very upsetting” and potentially involves hundreds of projects, according to Wagner.