This op-ed was originally published in The Hill.
The Trump administration has fired the latest salvo in its never-ending assault on environmental safeguards: a proposal from the White House Council on Environmental Quality (CEQ) to overhaul its regulations governing federal agency compliance with the National Environmental Policy Act (NEPA).
The proposal would narrow the scope of NEPA’s protections, weaken federal agency duties when the law applies, and attempt to shield violations of NEPA from judicial oversight. More significantly, the proposal is wildly inconsistent with NEPA’s most fundamental goal: fostering deliberation and democratic participation to improve the government’s capacity to promote social welfare.
NEPA relies on four key mechanisms.
First, it directs all federal agencies to accompany proposals for “major federal actions significantly affecting the quality of the human environment” with a detailed environmental impact statement (EIS) comparing the environmental impacts of the proposed action and its alternatives.
This requirement forces agencies that might be (and sometimes had been) inclined to subordinate environmental considerations to unbridled development to consider whether creative approaches might achieve programmatic goals without sacrificing the environment.
Second, NEPA directs agencies to share with the public the information they develop in assessing the environmental effects of their proposals, and especially with those most likely to be affected. This mandate serves to inform communities and catalyze the democratic process by soliciting input on important governmental choices.
Third, NEPA coordinates a decentralized decisionmaking structure in which agencies make decisions, but only after leveraging the expertise of other parts of the government. If, for example, an agency proposes to authorize mining in vulnerable species habitat, it should solicit and consider the views of the U.S. Fish and Wildlife Service (and similarly affected state agencies) before deciding whether, and how, to proceed.
Fourth, NEPA relies on a limited but critical role for the federal courts to ensure that agency decisions are based on sound information, not arbitrary reasoning.
Unfortunately, the CEQ proposal would radically undercut each of NEPA’s democratic purposes. First, it would sharply curtail the duty of agencies to consider adverse environmental impacts by narrowing the range of actions that trigger assessments.
Showing 2,819 results
Alejandro Camacho, Robert L. Glicksman | January 21, 2020
The Trump administration has fired the latest salvo in its never-ending assault on environmental safeguards: a proposal from the White House Council on Environmental Quality (CEQ) to overhaul its regulations governing federal agency compliance with the National Environmental Policy Act (NEPA).
Victor Flatt | January 15, 2020
It's not just wildfires in Australia or our rapidly warming oceans (to the tune of five Hiroshima bombs every second). Climate change affects every aspect of our world, and it's forcing us reevaluate all of the human institutions we've built up over years, decades, and centuries. One such institution that CPR Member Scholar Victor Flatt has begun investigating is the legal profession itself.
Daniel Farber | January 13, 2020
Last week's NEPA proposal bars agencies from considering many of the harms their actions will produce, such as climate change. These restrictions profoundly misunderstand the nature of environmental problems and are based on the flimsiest of legal foundations.
Daniel Farber | January 10, 2020
The White House just released its proposed revisions to the rules about environmental impact statements. The White House Council on Environmental Quality (CEQ) simply does not have the kind of power that it is trying to arrogate to itself. Its proposal is marked by hubris about the government's ability to control how the courts apply the law.
Daniel Farber | January 6, 2020
Australia is remarkably exposed to climate change and remarkably unwilling to do much about it. Conditions keep getting worse. Yet climate policy in Australia has been treading water or backpedaling for years.
James Goodwin | December 30, 2019
Here, in no particular order, are ten stories I will be following over the next year that could determine whether we will still have a regulatory system that is strong enough to promote fairness and accountability by preventing corporations from shifting the harmful effects of their activities onto innocent members of the public:
Daniel Farber | December 23, 2019
Like many humans, the Twenty-First Century’s teenage years were stormy.
James Goodwin | December 20, 2019
For many of us, the best way to characterize the past year in three words would be “too much news.” That sentiment certainly applies to the wonky backwater of the regulatory policy world. Today, that world looks much different than it did even just a year ago, and with still more rapid changes afoot, the cloud of uncertainty that now looms ominously over it doesn’t appear to be dissipating anytime soon. Here, in no particular order, are 10 of the biggest developments from the past year that have contributed to this disquieting state of affairs.
Dave Owen | December 18, 2019
This morning E&E News reported that researchers from the Netherlands and Environmental Defense had quantified a massive natural gas leak at an Exxon-subsidiary-owned well in Ohio. According to the study, the well leaked around 60,000 tons of methane. That made me wonder: what might the carbon tax bill for a leak like that be? The answer, of course, is $0.