Public Interest Comment: Council on Environmental Quality - Implementing NEPA

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By: Mark Febrizio
August 20, 2018

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The George Washington University Regulatory Studies Center improves regulatory policy through research, education, and outreach. As part of its mission, the Center conducts careful and independent analyses to assess rulemaking proposals from the perspective of the public interest. This comment on the Council on Environmental Quality’s (CEQ) Advance Notice of Proposed Rulemaking (ANPRM) for updating the regulations for implementing the procedures of the National Environmental Policy Act (NEPA) does not represent the views of any particular affected party or special interest, but is designed to evaluate the effect of CEQ’s proposal on overall consumer welfare.

Introduction

For the first time in 30 years, the Council on Environmental Quality (CEQ) is considering an update to its regulations for implementing the procedural provisions of the National Environmental Policy Act (NEPA) of 1969.[1] The purposes of NEPA include establishing a national policy toward the environment and promoting “efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man.”[2] NEPA requires federal agencies to incorporate the potential environmental effects of their actions, projects, and programs into their decisionmaking process.[3]

On June 20, 2018, CEQ published an advance notice of proposed rulemaking (ANPRM) in the Federal Register, titled “Update to the Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act.”[4] Through the ANPRM, “CEQ requests comments on potential revisions to update and clarify CEQ NEPA regulations” as it considers substantively revising the regulations with subsequent rulemaking.[5] CEQ’s request for comment on potential revisions to NEPA regulations consists of 20 questions divided into three categories: NEPA Process; Scope of NEPA Review; and General. A consistent theme is to “ensure a more efficient, timely, and effective NEPA process consistent with the national environmental policy stated in NEPA.”[6]

The ANPRM itself will not change existing regulations, but any resulting proposed rule and final rule could have significant implications for the NEPA process and agency preparation of environmental reviews. Given the expertise and experience residing in federal agencies that implement NEPA, seeking their input at this early stage of developing a proposal is especially important.

The ANPRM is an opportunity for CEQ to align its NEPA regulations with the regulatory best practices established in Executive Order (EO) 12866, Office of Management and Budget (OMB) Circular A-4, and other documents developed after CEQ’s NEPA regulations were initially finalized. Specifically, CEQ should make its provisions on benefit-cost analysis (BCA) consistent with regulatory best practices as well as lay a foundation for conducting retrospective review of NEPA regulations. The Act and its implementing regulations lack measures for gauging NEPA’s effectiveness. The agency can inform ex post analysis by establishing metrics that generate useful information on NEPA implementation. Furthermore, creating provisions for retrospective review will better prepare the public to provide recommendations on how to revise and clarify NEPA regulations in the future.

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[1]    While the statute is called the National Environmental Policy Act of 1969, it was signed into law on January 1, 1970.

[3]    Government Accountability Office (GAO). 2014. “National Environmental Policy Act: Little Information Exists on NEPA Analyses,” GAO-14-369, April 2014, p. 1, https://www.gao.gov/assets/670/662543.pdf.

[4]    CEQ. 2018. “Update to the Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act,” June 20, 2018, 83 FR 28591. https://www.federalregister.gov/d/2018-13246.

[5]    83 FR 28591.

[6]    83 FR 28591.