For roughly half a century, a little-known body called the White House Council on Environmental Quality has been in charge of overseeing implementation of the National Environmental Policy Act, or NEPA, a 1970 statute widely considered the “Magna Carta” of environmental law.
Congress passed the law at a time when Cleveland’s Cuyahoga River was on fire and yellow smog blanketed American cities. In an attempt to prevent such calamities, NEPA requires that any big infrastructure project funded or authorized by the federal government must account for its environmental impacts before it’s permitted to go forward. Now, when cities and states build federally funded roads, a developer erects an offshore wind farm, or an oil company builds a new refining unit on the Gulf Coast, NEPA applies.
This sweeping requirement created a need for coordination within the government. Given the number of federal agencies involved and the potential for larger projects to require authorization from multiple departments — a pipeline, for example, might require sign-off from the Department of Transportation, the Federal Energy Regulatory Commission, and the Environmental Protection Agency — Congress created the Council on Environmental Quality, or CEQ, and housed it within the White House in part to oversee NEPA implementation across the federal government. Since then, CEQ has been a central clearinghouse for interpreting the landmark law. In the years after its creation, the council issued rules that set forth requirements for public comment, defined key terminology, and laid out when projects required extensive analysis. The rules ensured uniformity in how agencies applied the law, and they were left largely untouched for roughly five decades.
Last month, the Trump administration unraveled those rules, and with them the council’s central role in implementing NEPA. By issuing a new interim rule, the White House is proposing to rescind CEQ’s guidance and instruct federal agencies to develop their own individual guidelines. The White House’s rule is expected to be finalized in the coming months, at which point every agency, from the Bureau of Land Management to the U.S. Forest Service, will be expected to develop its own standards and processes for determining whether a project complies with NEPA requirements, a process that could take years. Their interpretations could also be challenged in court, creating further uncertainty about what standards now apply for getting nearly any infrastructure project approved by the feds.
In an echo of the Trump administration’s refrain that extraordinary measures are required to curb government inefficiency, the unraveling of CEQ is intended to “expedite and simplify the permitting process” for important projects, according to Trump’s executive order. But experts who spoke to Grist anticipate that it will have the opposite effect.
“It’s chaos,” said Deborah Sivas, director of the environmental law clinic at Stanford University. “No business would run this way. If you’re a developer, you’re like, ‘What the heck? What even applies? How do I go about doing this right?’”
Complying with NEPA involves preparing lengthy environmental assessments, a process that is time-consuming and resource-intensive. The average time to complete the NEPA process is three years, and the average Environmental Impact Statement, one type of assessment reserved for larger projects, is more than 1,200 pages long. As a result, reforming NEPA has become a priority for prominent lawmakers in both parties. (Many Democrats in particular worry that the process hampers efforts to build renewable energy infrastructure.)
But simply throwing out a longstanding, centralized playbook for agencies to follow will create uncertainty and slow the process down, at least in the short term, according to Justin Pidot, a law professor at the University of Arizona who was the general counsel at CEQ during the Biden administration.
“It’s a huge mistake,” said Pidot. “It’s going to be very resource-intensive for them to do all these new procedures, and there’s going to be more uncertainty, and the permitting process is going to be harder and more complex. And all that is going to be happening at a time when there are fewer federal employees with less expertise.”
CEQ’s authority was largely unquestioned over its 50-year lifespan, but two court cases in the last year seemed to indicate a change in opinion among some legal scholars. In November, the D.C. Circuit Court of Appeals ruled in a case deciding whether federal agencies had adequately considered environmental impacts when developing plans to regulate tourist flights over national parks. In their ruling, the judges suggested that CEQ did not have the authority to issue binding regulations in its implementation of NEPA. Then, in February, a district court in North Dakota came to a similar conclusion. Since CEQ is an office within the White House and not an agency created by Congress, the court ruled that CEQ did not have the authority to issue binding regulations.
“The two cases definitely started going down that pathway of questioning or calling out what authority CEQ actually had,” said Jennifer Jeffers, senior counsel at the law firm Allen Matkins. “I don’t think that many people had foreseen this because it had been a longstanding practice and had not been a source of contention until quite recently.”
Still, the most significant blow to the office’s authority came only with Trump’s executive order. While it’s unclear how quickly agencies will produce their own NEPA-related rules and what it will mean for project developers, Jeffers said she expects the current requirements will continue to apply for projects in the pipeline as long as they are not inconsistent with the executive order.
The irony is that even Trump’s favored constituencies, like the fossil fuel developers he says will restore U.S. “energy dominance,” are left to wonder what new rules they’ll be forced to navigate when seeking federal permits in the future.
“It is not a good way for this administration to accomplish what this administration wants to accomplish,” said Pidot.
