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.