In April, the Council on Environmental Quality (CEQ)—an arm of the White House that coordinates federal environmental activities and policy development—took the most drastic action since its creation in 1970 by rescinding nearly 50 years’ worth of regulations that implement the National Environmental Policy Act (NEPA). The impacts of this action are sweeping and severe. Among other things, it will make NEPA processes more unpredictable and diminish the public’s ability to raise concerns about habitat destruction, biodiversity loss, and declines in air and water quality that endanger public health.
NEPA was passed by Congress with overwhelming bipartisan support and signed into law by President Nixon in 1970. This statute is our country’s basic charter for the protection of the environment, and one of the most important environmental laws in the United States. Congress enacted NEPA to “promote efforts which will prevent or eliminate damage to the environment and biosphere” in order to “fulfill the responsibility of each generation as trustee of the environment for succeeding generations.” The law is critical to guiding federal decisions that impact human health and the environment. The three basic principles of NEPA are informed decision-making, transparency, and public input.
The law requires federal agencies to consider the environmental impacts of projects—such as new power plants, highways, oil and gas development, and logging—and to explore less environmentally harmful approaches to achieving the projects’ objectives. It also provides opportunities for communities across the country to respond to and rebut the agencies’ data, proposed actions, and conclusions, giving them a chance to voice their concerns about how proposals may threaten public health and ecosystems.
AWI has routinely relied on NEPA to contest plans to kill certain wildlife populations in national parks and wildlife refuges, to challenge lethal control activities conducted by the US Department of Agriculture’s Wildlife Services program, and to protest wild horse and burro roundups. In comments to the CEQ, AWI strongly opposed this move to rescind NEPA’s regulations, and we are grateful to the thousands of AWI supporters who did the same through our action alert system.
Since 1978, NEPA has been implemented through regulations—issued by the CEQ—that have provided direction on NEPA compliance to over 80 federal agencies, project sponsors, environmental consultants, nongovernmental organizations, and communities impacted by projects. The complete revocation of the CEQ’s long-standing regulations introduces profound uncertainty into NEPA’s environmental review process.
It will now be up to individual federal agencies to determine how to comply with NEPA, what environmental impacts to disclose, and what level of public input is required. Concerningly, in guidance issued earlier this year, the Trump administration urged agencies to use controversial regulations issued by the CEQ in 2020, during the first Trump term. These regulations were the subject of multiple lawsuits and, ultimately, were largely reversed by the Biden administration.
The 2020 changes were unprecedented in their significance and scope and inconsistent with both the letter and spirit of the law. They undermined informed agency decision-making, reduced transparency, and limited critical public involvement, thus denying the public the democratic process at the heart of NEPA. Decisions on projects regarding land and ocean management, mining and drilling, and infrastructure were allowed to move forward without full consideration of their environmental impacts and without a requirement that a broad range of safer, more ecologically sound alternatives be considered.
In particular, the 2020 regulations jettisoned a requirement to evaluate the cumulative effects of a project. Cumulative effects are incremental impacts that may be minor in isolation but significant when viewed collectively. Evaluation of these impacts provides a larger-scale analysis of how projects, when viewed together, contribute to environmental harm. Removing this requirement to evaluate cumulative effects was clearly designed to restrict agencies’ ability to consider a project’s climate impacts—chiefly from greenhouse gas emissions—despite numerous courts having held that this is precisely the kind of cumulative impact analysis NEPA requires agencies to conduct. Prior to finalizing the 2020 regulations, the CEQ had recognized the need to analyze how projects might contribute to climate change, deeming it to be a fundamental environmental issue. Among its many harmful effects, climate change has fueled extreme heat waves, severe droughts, and intense storms that have devastated human communities and transformed ecosystems in ways that leave many wild animals struggling to survive.
The CEQ has now given agencies only a few months to attempt to determine what the 2020 regulations require and whether, or to what extent, to incorporate those regulations into their own NEPA rules. Rather than improving project delivery times and increasing efficiency, the CEQ’s actions instead sow greater uncertainty, upend established court rulings, policies, and procedures, and create confusion for the regulated community and the public. This will undoubtedly increase litigation, delays, and costs associated with project approvals while making it less likely that environmental impacts will be adequately assessed—with potentially devastating impacts on wildlife, habitat, and frontline communities.
In an unusual move, the CEQ’s decision to rescind the regulations was accomplished through an interim final rule, a process that is typically reserved for emergency situations. Such emergency situations have included imminent hazards to aircraft, people, and property, and immediate threats to the environment or national security, none of which were applicable in this case. An interim final rule allows federal agencies to dispense with the process of seeking comments from the public about what actions they propose to take.
The CEQ’s rescission of its long-standing regulations is one part of a much broader effort by the Trump administration to roll back regulations across nearly all federal agencies, which has been touted as the largest deregulatory effort in US history. The rescission of NEPA’s regulations will likely lead to destruction of wildlife habitat and loss of biodiversity, declines in air and water quality, and harm to public health, particularly in communities of color that are already disproportionately affected by toxic pollution. This leaves humans, animals, and our natural world more vulnerable than ever.