As part of our focus on People & the Environment, Eno will be having a Point-Counter Point Series for Eno Transportation Weekly on environmental issues. This article is part two of Edward V.A. Kussy’s guest op-ed on the proposed NEPA regulations. You can read his first op-ed on the topic here. Kussy previously served as the Deputy Chief Counsel (top career lawyer) at the Federal Highway Administration. 

Last week we began a discussion of the proposed changes to the Council on Environment Quality’s (CEQ’s) regulations implementing the National Environmental Policy Act (NEPA) and their relationship to surface transportation projects. In this section, we discuss some of the more controversial provisions.

Threshold Applicability/Definition of Major Federal Action

The Notice of Proposed Rulemaking (NPRM) issued by CEQ would exclude from the definition of “Major Federal Action,” and, thus, from the requirement to prepare an Environmental Impact Statement (EIS), actions where federal involvement or control is minimal or non-existent.  This includes , for example, matters such as non-discretionary actions, non-federal activities paid for with general revenue sharing funds, loan guarantees and other financial assistance where the federal agency does not exercise sufficient control. Most of these types of actions have been found not to require an EIS.  However, the idea that there should be a “threshold” below which NEPA would not apply is new. CEs already are available to efficiently deal with actions have little adverse environmental impacts. In addition, Congress has directed the creation of a number of Categorical Exclusions (CEs), such as one that applies to transportation projects receiving less than $5 million or having an estimated total cost of $30 million and a federal share of less than 15 percent. There is a significant difference, as the threshold actions in the NPRM may be excluded from NEPA no matter what their environmental impact, while actions normally classified as a CE may be subject to an Environmental Assessment (EA) or an EIS if the project causes or is likely to cause significant environmental impacts.

Alternatives

The NPRM would add a new definition of “reasonable alternatives” that would limit alternatives to those that are technically and economically feasible, meet the purpose and need, and meet the goals of the applicant. In addition, the NPRM to remove the requirement that agencies consider “reasonable alternatives not within the jurisdiction of the lead agency.”

For highway and transit projects, the new rule is not significantly different than current practice. Courts have long held that alternatives that do not meet purpose and need, at least to some extent, are not “reasonable.” By using PEL, that is, drawing extensively from decisions made during the transportation planning process, the scope of alternatives has already been limited to those within the jurisdiction of a transportation agency.

Effects

The scope of effects to be analyzed for large highway and other transportation projects presents some of the most difficult decisions that must be considered when preparing an EIS or other NEPA document. The NPRM addresses this issue by creating a single definition of the “effects” of a proposed action. Transportation agencies will find that this change would alter key parts of EAs and EISs, which now explicitly divide the discussion of effects into direct, indirect, and cumulative impacts.

The proposed definition would define the limits of the effects to be considered. This definition is probably broad enough to include both direct and indirect impacts because they are both directly related to the proposed action. However, it excludes the effects of other actions over which the agency has no control and explicitly states an analysis of cumulative impacts is no longer required. Thus, the definition is narrower in many ways than the current version.

Critics of the NPRM have expressed great concern about the elimination of cumulative impacts because without it, agencies would fail to assess the contribution of a proposed action to the adverse impacts from other, unrelated actions, and thus paint an incomplete picture of the true environmental consequences of the proposed action. For transportation projects, I have found that the cumulative impact analysis in existing NEPA documents can be somewhat artificial and the loss of this requirement should not greatly change the outcome of the NEPA process.

The problem with cumulative impacts is how far beyond the proposed action must an agency go when describing them? I have long advised clients to consider establishing a well-reasoned boundary within which to set forth and briefly assess the relevant impacts of other existing or proposed projects. Courts have accepted this approach. In fact, in some EISs the cumulative impact discussion simply lists the “other” projects or actions, with only a limited assessment of environmental impacts. Such discussions have also been upheld.

In 2016, CEQ issued guidance on how to consider climate change and greenhouse gases (GHGs). The guidance told agencies to address climate change and GHGs in their EISs. This guidance was withdrawn in 2017 and in June of 2019, CEQ issued new proposed guidance, requesting comments. This draft guidance indicated that climate change and GHGs should be addressed in the same way as other impacts, thus receiving attention only if the potential impacts were significant. The NPRM does not retreat form this position but invites comment on how and if to address climate change in the context of a NEPA document.

I believe that, with a few exceptions, NEPA does not provide an effective forum addressing climate change. For example, there is no doubt motor vehicle emissions contribute significantly to climate change. However, the incremental contribution of any given highway project is likely to be minimal, allowing decisionmakers to disregard it. To be meaningful, climate change needs to be addressed on a larger scale, as criteria pollutants are addressed by transportation conformity under the Clean Air Act.

Public Involvement and Time Limits on Commenting

The public commenting process has been a significant part of the NEPA process from the outset. It can be onerous because agencies must respond to all comments in the final EIS. Comments and responses on EAs are documented in project record. This part of the NEPA process would not change. In fact, an agency would now have to certify in the ROD that it considered all of the alternatives, information, and analyses submitted. With this certification, the agency would be entitled to a “conclusive presumption” that all comments were considered. It remains to be seen what courts will make of this certification should a significant comment be given short shrift or ignored.

The NPRM makes significant changes in the commenting process in three ways, all of which have the potential of reducing public input. The NPRM sets forth specific rules on the content of any comments. This would apply both to comments from other government agencies and to comments from the public. Applying this requirement to all commenters could impose an undue burden for people who may wish to comment on a particular project. Agencies already establish time limits for making comments, but the NPRM would have agencies not consider comments received after the deadline. The NPRM even asserts that failing to comment on an issue in timely fashion results in a failure to exhaust administrative remedies, which would foreclose a potential plaintiff from raising such an issue in the future. Only 30 days are provided for comments on the final EIS, and any comments not made are considered “unexhausted.”

Exhaustion is a principle of administrative law, not NEPA. It is not clear that CEQ has the authority to regulate in this area. It is true that some courts have held that failing to comment on an issue may foreclose that party from asserting a claim on such an issue. More frequently courts have held that agencies have an affirmative duty to comply with NEPA and have allowed plaintiffs to raise issues that could undermine the legality of a NEPA document, even if such issues were not raised in comments during the NEPA process.

Quite apart from the direct limitations on the commenting process, requiring EAs to be completed in a year and EISs in two years will inevitably force agencies to both shorten the time allowed for public comment and limit consideration of requests for extensions of time. Imposing short time limits for commenting on other public agencies with paid, expert staff is different than applying such limits on comments from individuals or small groups who may never have seen a NEPA document.

I am concerned about giving too little time for public involvement and that it could limit the effectiveness input. Providing sufficient time to obtain public acceptance of a project during the NEPA phase can avoid delays at a later, more expensive stage of project development.

Conclusion

The final rule, if and when it issues, should not result in truly significant changes for highway and transit projects, in part because transportation practices help inform the drafters of the NPRM. Indeed, FHWA has already incorporated the most recent executive orders into its procedures. For transportation projects, I have concluded that the changes being proposed are largely evolutionary, and thus not nearly as bad nor as helpful as initial press reports seem to indicate. Nevertheless, NPRM is an important and complex document. Many provisions of the current regulations would be changed. Thus, any serious commenter needs to carefully compare the existing rules to those proposed by the NPRM.

This concludes part two of Edward V.A. Kussy’s analysis of the proposed changes to the CEQ’s NEPA regulation. 

The views expressed above are those of the author and do not necessarily reflect the views of the Eno Center for Transportation.