The New NEPA Rules Are Final: Still Giving Regulatory Reform a Bad Name

CEQ has finalized revisions to the NEPA regulations.  I don’t have too much to add to my post on the proposed rule back in January.  NEPA needs reform.  These regulations, however, are not the reform NEPA needs.

The rule largely tracks the proposed rule.  It is worth noting, however, that, contrary to this administration’s frequently cavalier attitude toward judicial review, they have made a few tweaks to increase the likelihood that the rule will survive review.  I have two favorites.  First, the word “generally” in the sentence below did not appear in the proposed rule:

Effects should generally not be considered if they are remote in time, geographically remote, or the product of a lengthy causal chain.

CEQ’s explanation is that “there may occasionally be a circumstance where there is an effect that is remote in time, geographically remote, or the product of a lengthy causal chain is reasonably foreseeable.”

Can you say “climate change”?

Which brings me to CEQ’s second effort to survive judicial review.  As CEQ notes in the preamble, “commenters stated that agencies would no longer consider the impacts of a proposed action on climate change.”

I’m shocked, shocked, to think that anyone could see climate change denial as motivating any part of this rule.  In response to all of the misguided comments, CEQ clarified that:

The rule does not preclude consideration of the impacts of a proposed action on any particular aspect of the human environment. The analysis of the impacts on climate change will depend on the specific circumstances of the proposed action.

Only time will tell whether this “wink, wink, nudge, nudge” approach to elimination of climate concerns from NEPA will survive judicial review.