On July 15, the Council on Environmental Quality (CEQ) unveiled its final revisions to regulations that will govern how, going forward, CEQ will implement the National Environmental Policy Act (NEPA). Each agency will now have to revise its own regulations for implementing NEPA so their agency-specific regulations are consistent with the new CEQ regulations. ACRA and its partners at the Coalition for American Heritage has followed the development of these changes closely, and we expressed our concerns about the new regulations repeatedly throughout the rule-making process. Here, we assess how this final rule could impact historic and cultural resources, and we provide opportunities for action.
Most important, these new regulations will limit consideration of effects on historic properties in the NEPA review process. Classes of federal actions are now exempt from NEPA review and the types of project effects that are examined during the NEPA review process are now restricted. By removing classes of projects and types of impacts from NEPA review, the new regulations will restrict and reduce the consideration of historic properties in project decision making overall.
NEPA’s review process has long provided the public, including local stakeholders and Indian Tribes, with an opportunity to voice concerns about federal actions and projects. The opportunity for the public to review and comment on these actions and projects is the underpinning of the NEPA process. These concerns could be related to contamination of water sources, impacts to minority and underserved communities, destruction of cultural resources, or other environmental and social impacts. Under this new rule, CEQ significantly expedites the NEPA review process, bypassing or reducing time to implement many of the steps that allowed agencies to listen to, address, and remedy public objections to a project’s impacts.
The following are our top five concerns about CEQ’s new rule for implementing NEPA.
The new rule eliminates classes of federal actions from NEPA review because they do not meet the new “threshold” requirements to undergo a NEPA review. First, CEQ now directs agencies to exclude projects with “minimal federal funding” or projects “where the agency does not exercise sufficient control” from review. (See §1508.1(q)). Because they do not define “minimal” or “control,” this revision will give agencies with wide latitude to define “minimal” and “control” without any public scrutiny, which will likely lead to litigation.
Second, agencies can also decide to exclude projects from NEPA review if they determine another process or statute will cover any concerns raised by stakeholders, or if they decide NEPA would conflict with another law that governs the project, again without any public input or scrutiny. (See § 1501.1). While this change may appear to enhance efficiency, in practice it gives agencies unilateral discretion over which projects merit review under NEPA. These changes clearly limit the projects subject to NEPA assessment and—particularly relevant to historic and cultural resources—those that would incorporate opportunities for the public to raise concerns about impacts on historic properties, as well as environmental and community impacts.
On top of the additional barriers to projects entering the NEPA review process, the new rule restricts the public’s ability to add its voice to or engage in the review process itself, once it is underway. This restriction emerges from a number of changes, including imposing arbitrary timelines that would significantly reduce comment periods. (See § 1501.10(b)(1-2)). Often, meaningful consultation with stakeholders and Tribes takes time, and time limits mean that agencies will be tempted to skip or shortchange steps in the process. In addition, the new rule limits the public’s ability to comment on the purpose and need of a project, restricting the type of input to a project’s design plans or outcomes. (See § 1503.1).
Finally, if public constituents miss these narrow windows to comment on the project, the new rule prohibits them from pursuing litigation in court at a later date. Furthermore, even those who are eligible to bring a claim after participating in the comment process may have to put up money to access to the court system, as the new rule encourages the use of bonds in any ensuing litigation. (See § 1500.3). Again, these additional burdens could entirely exclude some communities from raising objections or encouraging alternatives for projects that might minimize impacts to historic properties. They will also exacerbate the risks that many marginalized communities face due to environmental hazards, obstructing their ability to bring legitimate claims before the court and pursue environmental justice.
Even if agencies determine a project qualifies for NEPA review, the new rule significantly limits the analysis of a project’s effects on the environment. By revising the definition of effects, CEQ effectively excludes any impacts from consideration that do not occur as a direct result of the project or in its immediate vicinity. (See §1508.1 (g)).
Under the new rule, effects are not considered significant if they are remote in time, geographically remote, or the product of a lengthy causal chain. These types of effects can result in adverse impacts to historic properties. For example, a federal action whose purpose and need includes regional economic development may result in impacts to historic properties in the locations of the resulting development. In addition, under the new rule, a “but for” causal relationship is insufficient to make a federal agency responsible for a particular effect under NEPA. As a result, the full range of impacts resulting from of a private development which cannot proceed “but for” receiving a federal permit or approval (that is, the project would not take place without the federal approval or permit) will not be examined under the NEPA review process. The NEPA review will only consider the narrow location of the federal approval or permit, and not the entire private project, which may have adverse impacts on historic properties.
The new rule also places an ill-defined and arbitrary limit on the number of alternatives that agencies can analyze. (See § 1502.14). Consideration of alternatives is important for identifying options that reduce impacts to cultural resources. By limiting agencies to a “reasonable number” of alternatives, CEQ unnecessarily restricts agencies to an arbitrary set of possible solutions.
This new rule also limits the public’s ability to comment on these alternatives, curtailing what should be a robust review that takes into consideration stakeholder concerns. (See § 1500.3 (b)). Placing such a restriction will limit the agencies in their effort to avoid or minimize effects to historic and cultural resources.
Because of the ambiguity in certain terms contained in the new rule, the arbitrary discretion given to agencies, and an accelerated timeline for NEPA review that will create inevitable mistakes and omissions, these regulations are bound to result in extensive litigation. More litigation creates further project delays. NEPA now has fifty years’ worth of case law interpreting the statute and its regulations. These proposed regulations toss that case law—and all of the existing CEQ guidance—away.
Indeed, these regulatory changes will not only impact communities and the natural and cultural resources they value, but they will impact and impair industry. Industry groups will now lose the predictability that was previously afforded projects from clear regulatory processes, and the ability to rely on the public input process to surface and resolve concerns about a project early in a project’s development.
Recommended Response to Projects Under New Regulations
There are, of course, other changes to the regulations that impact the preservation of historic properties. Cumulatively, each of the changes we have listed here will severely limit the public’s ability to comment on projects and alert agencies and private developers to impacts on historic and cultural resources, the environment, and communities. The next question is where we can go from here to continue to protect historic properties.
The new rule begins to apply to all projects undergoing NEPA review on September 14, 2020, but agencies can now utilize the new rule voluntarily. This distinction is important, because communities can continue to engage with agencies using the old rule, reminding agencies that they do not have to apply the new rule until September 14 and that they will also likely come under challenge through litigation. The old rule remains the more reliable, legally sound procedure, tried and tested under 50 years of case law.
In short, until September 14, communities can strategically pressure the agencies to continue applying the old rule to both new projects, as well as projects where NEPA review has already begun. Communities should notify litigators when agencies attempt to apply the new rule prematurely. With regard to projects currently in litigation, agencies do not have grounds to say the implementation of the new rule leaves no legal remedy for these projects. The violations being litigated occurred before the new rule applied, and the agencies violated the applicable law at the time: the previous CEQ rule, which has 50 years of case law on which to stand.
Impacted communities should also become proactive about fact finding. Stakeholders can inform themselves about new project developments through multiple avenues, including accessing public records, FOIA requests, and initiating outreach to agencies. Once again, we expect litigation challenging these new regulations to ensue quickly.
Take Action to Oppose NEPA Regulatory Rollbacks
Stay tuned to all ACRA properties for additional developments on this and other issues facing the CRM industry. You can subscribe to the ACRAsphere for the most up to date information and follow up on both Facebook and LinkedIn.
Login for easier commenting: