On August 3, 2023, Fred Wagner was quoted in Inside EPA regarding the White House Council on Environmental Quality’s (CEQ) proposed phase 2 rule for how federal agencies implement the National Environmental Policy Act (NEPA), which includes several new mitigation, assessment, and other mandates that GOP and industry critics charge will drive new litigation opportunities and further delay project approvals.
According to Wagner, the competing reactions show “a major philosophical difference between” CEQ and what the GOP expected following the NEPA legislative amendments.
In the proposal, CEQ interprets the overarching purpose of NEPA very differently from how Republicans and the 2020 Trump rule did, stressing that a NEPA review “is not a check-the-box exercise” but is intended “to get to better outcomes for the environment. . . . That’s what is triggering the GOP objections,” Wagner says.
Rather than objecting to language addressing EJ and climate change, which was expected, the rift is over CEQ’s “very explicit rejection of the 2020 rule and stating this philosophical interpretation of the statute,” Wagner adds. In contrast, the GOP says more certainty and clarity are needed, and they warn that CEQ’s flexibilities will “stand in the way of project development.”
Wagner also points to the CE language as noteworthy, noting that the regulation “goes way beyond” the legislative changes in part because the new text is vague and needs interpretation, “and so CEQ elaborated quite a bit” and the rule now “reflects CEQ’s discomfort” with how the government has been managing CEs.
The proposal requires a lot more documentation, including for mitigation commitments and inventories of each agency’s CE. Furthermore, it says mitigation—either in a CE or in a “mitigated Finding of No Significant Impact”—requires follow-up and additional requirements if the effort fails.