NEPA, CEQA and the winds of change

It is a big week for changes in environmental permitting under the federal National Environmental Policy Act (NEPA) and California’s state version of that law (CEQA).

The White House is unfortunately eliminating overarching, consistent NEPA regulations that covered all agencies. CEQ's regulations were not perfect, but at least they provided a significant degree of consistency across government. Not now. Ironically for the Trump administration, in place of one regulation (CEQ’s) we will have a dozen+ separate sets of instructions because now each agency needs to write their own.

The first batch of those new agency-by-agency rules came out today. (@Eric Beightel at Environmental Science Associates has done a nice job linking to the eight or more agency procedures so I will just share the link to his coverage here.)

The administration may not count 100s of pages of ‘procedures’ as regulations, but projects are still going to get taken to court for NEPA issues and decisions may be more vulnerable – not less – to challenge because of this proliferation of regulatory text.

From a political perspective, I think the more interesting changes to permitting laws this week come from California, where Governor Newsom signed yet more changes to state environmental permitting into law (Senate Bill SB131 and Assembly Bill AB130).  Permitting changes happening in many states – especially those led by Democrats like Governor Newsom – are making it increasingly untenable for Democratic officials in Washington to argue against changes that have long been championed by Republicans.

For example, California has now adopted limits that only allow lawsuits under CEQA by parties who commented during earlier stages of a project’s review (i.e. standing limits).  And California has adopted shorter deadlines on when litigation can be filed. Previously, both types of proposals to change federal laws have repeatedly stalled out in Congress on a mostly partisan basis.  I imagine it is going to get harder to hold that line.  There will probably be some national effort by environmental groups to assign responsibility to Governor Newsom, but the reality is that Democrats in state legislature overwhelmingly voted for the legislation so I expect that effort will fall flat.

Passing categorical exclusions or exemptions for various types of projects is also a part of California’s new law, but proposals to do the same at the federal level now frequently come from both parties and have also been happening for many years through federal agency action.  This Swiss cheese-approach to policy isn’t a great solution to procedures that are clearly not working for activity after activity.  I’m disappointed there are not better ideas on the table to fix review procedures more generally, although California and other states’ efforts (e.g. Virginia, Connecticut, Massachusetts, etc.) to create very enforceable deadlines at multiple stages of agency decision-making is one of the systemic reforms that has the most traction right now.

I’ll share some more perspectives on California and Federal changes below but there are 100s of pages of very technical reform so am sure I missed many things (and probably got some details wrong).

California

AB130 is one of the new laws that were passed in California. At more than 50,000 words this isn’t exactly making permitting law simpler, but the focus of it is to narrow the scope of actions to which CEQA applies and speed up or at least clarify requirements under the law for many types of projects.

Individual staff subjectivity and unknown process deadlines are among the most consistent problems across almost all environmental permitting laws I’ve ever looked at. Most of the what AB130 attempts can be characterized as an effort to address those issues. A big part of the law amends the 2023 Permit Streamlining Act by extended sunset deadlines of provisions in that law, but there are many other changes as well.    For example, existing law (from 2023) required agencies to tell development project applicants if their permit application was complete within 30 days of its submittal - the new law now allows housing developments use that 30-day completion check ‘guarantee.’

Originating in the state Senate, SB131has a different mix of reforms.  It exempts the process of rezoning areas for housing from CEQA.  It also exempts farmworker housing projects, repair or maintenance of existing farmworker housing projects, small water system improvement projects that don’t affect wetlands or sensitive habitats, projects that extend sewer service to disadvantaged communities, and water system projects that provide climate resilience, wildfire protection, or biodiversity recovery benefits.

SB131 also limits lawsuits and judicial review under CEQA.

This includes limitations on the documents that can be submitted during litigation, faster administrative record completion times (60 instead of 100+ days), shorter deadlines for instigating a lawsuit (similar to federal proposals), and limitations of who can file (i.e. has standing) to those who also commented on the draft proposals.  As noted above these provisions, being similar to federal Republican proposals, but now adopted through Democratic action, in California certainly undermine any national Democratic opposition to such changes in NEPA, ESA, or other environmental laws.  AB130 also expands some of the projects that can be covered by previously adopted streamlining of court review of projects.

California’s actions have few likely effects on how wetlands or other sensitive habitats are protected or regulated because ecologically important habitats are carved out of the areas in which exemptions are applied – this is unlike many of the federal bills that have been introduced on NEPA or the ESA which make no special case for special places.

On the creative side of policy, there is a  new mitigation bank concept now in law: California has created a mitigation bank not for ecological habitat but for human habitat – specifically affordable housing.

If a new development would significantly increase car traffic or ‘vehicle miles travelled’ the law allows the developer to skip some on-site changes to avoid or minimize traffic-causing impacts of the development and instead pay into a state fund that pools these fees to pay for traffic reducing measures elsewhere like affordable housing, bike or pedestrian infrastructure or transit improvements.  Like other in lieu fee programs in the US and abroad, there is a high chance this fund will fail to fund projects expeditiously or efficiently or possibly ever… but just like for aquatic habitat and wetlands. It is still a good idea to fund projects that can provide bigger benefits elsewhere in place of what are often trivial, short-lived and costly investments on-site. Santa Clara County has been studying and designing a simar program for the last three years.  Just wish they had incentivizing more private sector action in place of another government-run, government-reported funding pool for already overworked staff to administer.

There are many other changes to CEQA that California has enacted, and I look forward to hearing about the ones that others are most closely tracking.

Back to Washington DC

With CEQ regulations thrown out the window, there are now new regulations and procedures for NEPA from a pile of federal agencies and more on the way. I’ve really only had time to dig into Department of Energy, Commerce, and US Army Corps procedures and regulations so far.  I already see the differences among agencies coming into plain sight.  For example, DOE’s regulations stretch to 80 pages but more than half are descriptions of (existing) categorical exclusions; the Army Corps are 70 pages long with almost no description of categorical exclusions and instead cover a host of substantive and important NEPA implementation issues that are missing from DOE documents.

DOE and the Army Corps both take pains to note they are not required to seek comment under the argument that the elimination of CEQ’s rulemaking authority creates an immediate gap that must be filled by agency specific guidance, but that they are voluntarily taking them if anyone wants to do so.    The agencies are really leaning into the argument that NEPA requires nothing at all except paperwork, data and analysis – not any change in a project’s effects on a community or ecosystem.

DOE

The Department of Energy issued an interim final regulation for NEPA as well as almost 70 pages of implementation policy.  The bulk of the regulation is a restatement of the categorical exclusions the agency can make use of (and I believe these are all old exclusions but I’m reading it quickly and its possible there is something new in there).

I appreciate that DOE (and presumably some other agencies) make clear that there are federal actions that are not major federal actions.  For DOE, these include “administrative and routine” actions.  Those don’t require a categorical exclusion, they are simply not major and so not covered by NEPA.  It shouldn’t have taken so long to get ‘major’ better narrowed and defined under the law.  I support DOE’s inclusion in this list of not major things, block grants to local governments under various energy efficiency and conservation and loan programs.  Similarly, the exempt pay for success-types of contracts where federal payment or reimbursement ore requests for funds happen after physical work on a project is complete.

NOAA

NOAA at the Department of Commerce released a proposal seeking public comments on categorical exclusions and on its implementation policy. However, they also are proposing new categorical exclusions for things like shellfish outplanting and private remote space sensor systems. NOAA is also amending dozens of existing categorical exclusions.

USACE

As with the Department of Energy’s actions, the Army Corps interim rule takes pains to explain in depth that NEPA was meant to only be a procedural statute with no requirement for agencies to change their action in any way to minimize harm or to make changes in response to public input.  They make clear that jurisdictional determinations (like whether a wetland is a water of the US) and other determinations of questions like whether an action requires a permit do not fall under NEPA.  They make clear that there are environmental assessments that require no alternatives analysis.  That is a good example of a new inconsistency because DOE’s regulations and procedures say nothing of the kind.  Does that mean all of DOEs environmental assessments require alternatives?  That none of them do?  I don’t know.  Unsurprisingly, the administration is continuing efforts to exclude analysis of effects that are remote in time or many steps removed from the agency action regardless of whether they would not happen but for the action.

This is not a comprehensive summary of what is in this bevy of federal NEPA actions, but I'm trying to capture some of the themes that I see in the revisions to get a sense for what is coming next. I doubt its going to be a good thing for the planet or any future-focused version of our national economy and local quality of life.