Proposed NEPA rule changes: ‘No brainers,’ but not nearly enough

The Biden administration’s attempt to reverse some of the most egregious cuts to the nation’s key environmental law, the National Environmental Policy Act, is a move in the right direction but doesn’t go far enough to restore critical safeguards for vulnerable communities that have long borne the brunt of polluting projects like highways and pipelines.

Earlier this month, the Biden administration’s Council on Environmental Quality announced proposed NEPA rule changes to restore some of the Act’s protections. President Trump, in the waning months of his administration, pushed through an industry-friendly gutting of to NEPA that made it easier for construction interests to ramp up massive projects but harder for communities to push back.

The new CEQ proposal would unwind three of the most harmful changes in the Trump rollbacks, including a provision that required federal agencies to prioritize industry goals. The changes aim to restore an equal say to members of the public who want to protect their communities from climate change, environmental injustice, and pollution.

If climate change and environmental justice are really top priorities for the Biden administration, then CEQ is shooting the administration in the foot.

Senior Attorney Kym Hunter

Those changes are “no brainers,” said Kym Hunter, a senior SELC attorney heading the organization’s defense of NEPA, but she added that the CEQ plan still leaves too much of Trump’s meddling in place.

“If climate change and environmental justice are really top priorities for the Biden administration,” Hunter said, “then CEQ is shooting the administration in the foot.”

For example, the new CEQ proposal keeps in place Trump-era provisions that allow agencies to avoid NEPA requirements by creating their own loopholes. Agencies that were allowed to skip analysis and disclosure for some kinds of projects will still have that option under the proposed new rules.

The proposal also leaves an unfair hurdle that makes it difficult for affected communities to offer general comments or objections on a proposed project. Instead, a vestige of the Trump rules require highly specific comments that often require technical expertise. Many Southern communities without wealth or political clout might not have that expertise or can’t afford to procure it.

Those unfair and unjust requirements are at the heart of SELC’s lawsuit to overturn the Trump rules. The new rule changes are not final or immediate, which is why SELC is still pressing its case in court.

“These rule changes are not only incomplete, but they are simply proposals in what will be a long process,” Hunter said. “In the meantime, harmful projects are moving forward under the Trump rules to the detriment of many of our vulnerable Southern communities. We are fighting in court to get the Trump rules thrown out entirely, and we’ll continue that fight.”