I. Introduction
Congress enacted NEPA during the great productive period in environmental lawmaking. But unlike major authorizing statutes such as the Clean Air and Clean Water Acts, NEPA does not confer delegated regulatory authority on the executive branch. Instead, it plays a crucial but limited role: requiring agencies under certain circumstances to consider and inform the public about the environmental consequences of their proposed major actions.
NEPA was a slim statute. Its operative provision governing these agency environmental studies was short, and at its origin it was expected to enhance coordination, education, and expedition in the integration of environmental analysis into the workings of the administrative state.
Over the next half century, however, the process mushroomed. Unfortunate case law, driven by interest-group litigation that was overly zealous at best and obstructionist at worst, caused agency environmental analyses to balloon to thousands of pages, average permitting times to stretch, and needed infrastructure and other projects to languish.
At the center of this procedural hypertrophy lay the Council on Environmental Quality. Operating with a small staff in a cloistered townhouse one block from the White House, this body wrested control of environmental and energy policy from Congress. NEPA did not delegate regulatory authority to CEQ—but CEQ, citing Executive Orders, purported to exercise it anyway. After CEQ issued its first implementing regulations in 1978, a feedback loop developed between those regulations, expansively read by NGO commenters and litigants, the activist courts those litigants sought out, and acting agencies caught up in “analysis paralysis.”
In 2020, CEQ finally pruned back the brush, streamlining its implementing regulations to ensure expeditious, orderly, rational environmental analysis. And when Congress this year substantively amended NEPA for the first time, it adopted much of this regulatory reform, locking into the statute a clear direction to CEQ and acting agencies that analysis has proper limits, in subject matter and timeline. The message was clear: it’s time to get America moving again.
But key aspects of CEQ’s “phase two” Proposal make a mockery of Congress’s direction. While paying lip service to speed and certainty, in the same document it embraces the very theories of frequent-flyer litigants whose efforts led to the morass that the 2020 rule and 2023 statutory amendments sought to drain. This strikes at the heart of accountability in environmental regulation: the people’s representatives have spoken, but CEQ isn’t listening. The Proposal also deepens CEQ’s improper assertion of control over those agencies to whom Congress has actually delegated rulemaking authority. Again: CEQ is not an agency, and it exercises no delegated rulemaking authority, for it was given none. It reports to the President, who directs executive branch agencies through personnel decisions and policy directions within the statutory frame established by Congress. CEQ has no right to bring acting agencies into conflict with their statutory obligations, but this Proposal will make that conflict widespread and inevitable.
The Proposal will also enable the worst tendencies of the federal judiciary. Where the 2020 regulatory reform and the 2023 statutory amendments sought to restore workable, certain, brightline, common-sense analytical approaches, the Proposal introduces expansive, unworkable analytical requirements. NEPA’s core is the consideration of environmental impacts where they are felt the most: at a project site itself and in the effects proximately caused by the project. The Supreme Court has held as much and has further held that there is a direct link between an agency’s statutory jurisdiction and the scope of its NEPA analyses. If an agency has no power to alter its decision based on a piece of effects analysis, NEPA does not require it to conduct that analysis. The Proposal completely disregards these key high-court rulings, emboldening lower courts to do the same.
The Proposal would create an illegal double standard, under which projects the Administration favors are presumed (without a showing) to have no or net-beneficial impacts, while projects it disfavors will be dispatched to a treadmill of endless climate and other impacts analysis. It would reserve for CEQ a standardless, lawless “innovative” escape hatch, arrogating to the Council sole authority to excuse an acting agency from any regulatory requirements in the case of “extreme” environmental effects—which CEQ illustrates with a set of terms so broad as to encompass any situation it chooses. This will trap the Administration’s disfavored projects, programs, and energy sources under the “tyranny of small decisions,” while weaponizing NEPA into an unauthorized instrument to force an “energy transition.”
The Proposal would also enshrine the sensitive issue of environmental justice at the heart of NEPA analysis. But the task of grappling with our nation’s complex social structure and the legacy of the past was never what Congress intended CEQ or acting agencies to address under NEPA. This will not only, as with climate, expand NEPA analyses and draw agencies further and further away from their duly delegated authority; it will cynically use our nation’s greatest ideals as a tool for a lawless and unsound rush to abandon generations of social and economic progress.
If finalized as proposed, this rule will distort accountability in all three branches of government. It will frustrate Congress’s original design and recent reform of NEPA. It will harness duly authorized agencies to an unauthorized, transformative agenda. And it will defy the Supreme Court while fanning the flames of activist district-court litigation.
What it will not do is improve environmental quality—and could well harm it. Even the largest federal oil and gas lease sale has vanishingly small impact on the composition of the atmosphere. Fossil fuels are central to domestic and global economic and social well-being. In addition to amending NEPA to curtail CEQ’s and others’ historical tendency to improperly expand the environmental-analysis process, Congress has also recently acted to itself authorize a natural gas pipeline, in the process expressly finding that the pipeline would have a long list of benefits, 3 including emission reductions. The people of the United States in Congress assembled have made their position clear. CEQ should not plug its ears to these warnings.
The sluggish pace of the President’s energy transition is no excuse for biasing reviews away from the true consequences of a decision. Agencies have finite resources. Their review is subject to tradeoffs between those issues truly within their control and those merely thematically connected to issues of public interest. Here, the rule of law and the rule of reason converge: CEQ must observe its and NEPA’s important but limited role, and it must not finalize this Proposal in anything like its current form.
CEQ’s proposed NEPA Phase II regulations would hijack energy and environmental policy from Congress
I. Introduction
Congress enacted NEPA during the great productive period in environmental lawmaking. But unlike major authorizing statutes such as the Clean Air and Clean Water Acts, NEPA does not confer delegated regulatory authority on the executive branch. Instead, it plays a crucial but limited role: requiring agencies under certain circumstances to consider and inform the public about the environmental consequences of their proposed major actions.
NEPA was a slim statute. Its operative provision governing these agency environmental studies was short, and at its origin it was expected to enhance coordination, education, and expedition in the integration of environmental analysis into the workings of the administrative state.
Over the next half century, however, the process mushroomed. Unfortunate case law, driven by interest-group litigation that was overly zealous at best and obstructionist at worst, caused agency environmental analyses to balloon to thousands of pages, average permitting times to stretch, and needed infrastructure and other projects to languish.
At the center of this procedural hypertrophy lay the Council on Environmental Quality. Operating with a small staff in a cloistered townhouse one block from the White House, this body wrested control of environmental and energy policy from Congress. NEPA did not delegate regulatory authority to CEQ—but CEQ, citing Executive Orders, purported to exercise it anyway. After CEQ issued its first implementing regulations in 1978, a feedback loop developed between those regulations, expansively read by NGO commenters and litigants, the activist courts those litigants sought out, and acting agencies caught up in “analysis paralysis.”
In 2020, CEQ finally pruned back the brush, streamlining its implementing regulations to ensure expeditious, orderly, rational environmental analysis. And when Congress this year substantively amended NEPA for the first time, it adopted much of this regulatory reform, locking into the statute a clear direction to CEQ and acting agencies that analysis has proper limits, in subject matter and timeline. The message was clear: it’s time to get America moving again.
But key aspects of CEQ’s “phase two” Proposal make a mockery of Congress’s direction. While paying lip service to speed and certainty, in the same document it embraces the very theories of frequent-flyer litigants whose efforts led to the morass that the 2020 rule and 2023 statutory amendments sought to drain. This strikes at the heart of accountability in environmental regulation: the people’s representatives have spoken, but CEQ isn’t listening. The Proposal also deepens CEQ’s improper assertion of control over those agencies to whom Congress has actually delegated rulemaking authority. Again: CEQ is not an agency, and it exercises no delegated rulemaking authority, for it was given none. It reports to the President, who directs executive branch agencies through personnel decisions and policy directions within the statutory frame established by Congress. CEQ has no right to bring acting agencies into conflict with their statutory obligations, but this Proposal will make that conflict widespread and inevitable.
The Proposal will also enable the worst tendencies of the federal judiciary. Where the 2020 regulatory reform and the 2023 statutory amendments sought to restore workable, certain, brightline, common-sense analytical approaches, the Proposal introduces expansive, unworkable analytical requirements. NEPA’s core is the consideration of environmental impacts where they are felt the most: at a project site itself and in the effects proximately caused by the project. The Supreme Court has held as much and has further held that there is a direct link between an agency’s statutory jurisdiction and the scope of its NEPA analyses. If an agency has no power to alter its decision based on a piece of effects analysis, NEPA does not require it to conduct that analysis. The Proposal completely disregards these key high-court rulings, emboldening lower courts to do the same.
The Proposal would create an illegal double standard, under which projects the Administration favors are presumed (without a showing) to have no or net-beneficial impacts, while projects it disfavors will be dispatched to a treadmill of endless climate and other impacts analysis. It would reserve for CEQ a standardless, lawless “innovative” escape hatch, arrogating to the Council sole authority to excuse an acting agency from any regulatory requirements in the case of “extreme” environmental effects—which CEQ illustrates with a set of terms so broad as to encompass any situation it chooses. This will trap the Administration’s disfavored projects, programs, and energy sources under the “tyranny of small decisions,” while weaponizing NEPA into an unauthorized instrument to force an “energy transition.”
The Proposal would also enshrine the sensitive issue of environmental justice at the heart of NEPA analysis. But the task of grappling with our nation’s complex social structure and the legacy of the past was never what Congress intended CEQ or acting agencies to address under NEPA. This will not only, as with climate, expand NEPA analyses and draw agencies further and further away from their duly delegated authority; it will cynically use our nation’s greatest ideals as a tool for a lawless and unsound rush to abandon generations of social and economic progress.
If finalized as proposed, this rule will distort accountability in all three branches of government. It will frustrate Congress’s original design and recent reform of NEPA. It will harness duly authorized agencies to an unauthorized, transformative agenda. And it will defy the Supreme Court while fanning the flames of activist district-court litigation.
What it will not do is improve environmental quality—and could well harm it. Even the largest federal oil and gas lease sale has vanishingly small impact on the composition of the atmosphere. Fossil fuels are central to domestic and global economic and social well-being. In addition to amending NEPA to curtail CEQ’s and others’ historical tendency to improperly expand the environmental-analysis process, Congress has also recently acted to itself authorize a natural gas pipeline, in the process expressly finding that the pipeline would have a long list of benefits, 3 including emission reductions. The people of the United States in Congress assembled have made their position clear. CEQ should not plug its ears to these warnings.
The sluggish pace of the President’s energy transition is no excuse for biasing reviews away from the true consequences of a decision. Agencies have finite resources. Their review is subject to tradeoffs between those issues truly within their control and those merely thematically connected to issues of public interest. Here, the rule of law and the rule of reason converge: CEQ must observe its and NEPA’s important but limited role, and it must not finalize this Proposal in anything like its current form.