April 20, 2022

Inside EPA Quotes Fred Wagner on CEQ’s Response to Opposition of NEPA Rule Changes

2 min

On April 20, 2022, Venable partner Fred Wagner was quoted in Inside EPA on the White House Council on Environmental Quality’s (CEQ) broad rejection of claims from industry groups and Republican lawmakers that its new final rule restoring stringent National Environmental Policy Act (NEPA) review requirements will delay critical infrastructure projects.

According to the article, CEQ finalized a phase 1 rule to make three core changes to a major 2020 rewrite of NEPA implementing rules by the Trump administration. The revisions reinstate requirements to consider direct, indirect, and cumulative effects; revert to the prior definition of a project’s “purpose and need” to stress it is not the applicant’s prerogative; and state that the CEQ rule is the floor, not the ceiling, for how agencies implement NEPA when they review major federal actions. The rule has drawn stiff criticisms from industry groups and GOP lawmakers, who charge it is likely to delay key projects and spur new legal challenges to critical infrastructure projects.

In the response to comments, however, CEQ “disagrees that the revisions proposed . . . and made in the final rule will cause delays in timeframes for the NEPA process. Commenters did not provide evidence to demonstrate that the provisions in the final rule contribute to delays. The provisions in the final rule are designed to provide clarity and reduce confusion, which should help expedite, rather than slow down, the NEPA process.”

“CEQ did not receive any data, but only general and speculative statements, in response to its specific request for comment on potential effects of the proposed changes . . . on the environmental review process, including timeframes for environmental review,” it adds in the final rule.

Wagner says CEQ’s view that NEPA does not cause delays is a bit disingenuous. “I don’t know what it would take to demonstrate otherwise,” he says. “Anybody involved in the NEPA process understands there are inefficiencies, and the more controversial projects take more time than needed. CEQ itself has been trying to figure out ways to improve and streamline the NEPA process for 30 years. So, if CEQ itself has been engaged in making things better, why say, over and over again, there is no data?”