Wednesday, September 13, 2023

Taking the Environmentalism out of Environmental Law

The Council on Environmental Quality recently proposed to update its regulations for implementing the National Environmental Policy Act. The proposed new regulations are modest in their scope; they largely focus on clarifying regulatory language and conforming that language with court decisions and long-existing practices. But the proposed regulations also talk about addressing climate change and environmental justice in NEPA reviews. Somewhat predictably, those mentions have provoked outrage, as has the entire regulatory effort.

A recent piece in Forbes captures the tenor of the debate. The author, an economist at the Competitive Enterprise Institute, described the proposed regulations as “a regulatory bomb that threatens to blow up infrastructure permitting reform.” He went on to assert that the proposed regulations are

a dramatic attempt to undermine bipartisan Congressional efforts to streamline energy and infrastructure project reviews. If finalized, this rule will lead to longer approval times, increased litigation risk, and mounting uncertainty surrounding the steps to obtaining a permit, all while throwing in doubt the viability of America’s ongoing clean energy transition.

This is ridiculous—the proposed new regulations are consistent with existing practices, and the best available evidence shows that NEPA has little impact on permitting associated with the clean energy transition—but most of its ridiculousness is a subject for another post. Today’s focus is another statement in the piece. The author also claims that, “[a]s the Supreme Court has repeatedly affirmed, NEPA is a procedural statute that does not elevate environmental concerns over other policy objectives.” For this reason, the author argues, it is wrong for the proposed rules to amplify goals like climate-change mitigation or environmental justice or to discuss mitigation measures for environmental harms.

The move here will strike many environmental lawyers as familiar. A common industry talking point takes statutes or legal doctrines designed to protect the environment and attempts to convert them into neutral referees of environmental disputes. I’ve heard this repeatedly in discussions of California’s public trust doctrine, which water-district attorneys routinely, and inaccurately, describe as a simple balancing test, with no thumb on the scales in favor of environmental protection. You can also see it in the Supreme Court’s recent Sackett decision, in which Justice Alito’s opinion for the Court studiously ignored statutory language declaring the Congress wanted clean water while emphasizing later language about empowering states, and Justice Gorsuch’s concurrence argued that the Clean Water Act is really just focused on protecting navigation. These revisionist readings have two goals. The first, and most obvious, is to tip the interpretive scales against environmental regulation. The second is to bolster arguments that these laws are just red tape. After all, if NEPA is just procedure, with no real goal of environmental protection, what’s the point?

But these attempts are wrong, and NEPA itself exemplifies the reasons why. That the statute does not establish substantive environmental protection requirements for an agency that completes an environmental impact statement has long been settled. But that does not mean the statute is neutral with respect to environmental protection. Quite the opposite; the statute begins by noting “the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man,” and goes on to assert “that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.” The debt-ceiling bill did not remove any of that language. After the bill, as before, the statute clearly is about protecting the environment, and it also is about protecting people who are impacted by environmental problems. To discuss climate change and environmental justice—two of our greatest environmental challenges—is consistent with this statutory orientation.

With mitigation, the story is a bit more complicated, but again, the discussion is appropriate. While NEPA is widely understood to have no substantive bite against an agency that completes an EIS, NEPA lawyers also have understood for decades that a federal agency that wishes to proceed with a discretionary action without preparing an EIS does have a substantive obligation. It must ensure that the action’s environmental impacts, if they exist, are less than significant. In other words, it must respect Congress’s determination that it is illegal to proceed with an action causing significant impacts unless the agency first prepares an EIS. Agencies often use mitigation to reduce impacts to less-than-significant levels, and it therefore is appropriate for the CEQ’s regs to address the level of assurance those mitigation measures must provide. To leave that assurance unspecified would be to risk widespread thwarting of NEPA’s most basic mandate.

The broader point is straightforward. When anti-regulatory activists try to take agencies to task for interpreting environmental statutes as advancing environmental goals, we should take their claims with some large grains of salt. Advancing environmental goals is the main thing environmental statutes were written to do.

- Dave Owen

September 13, 2023 | Permalink | Comments (0)

Taking the Environmentalism out of Environmental Law

The Council on Environmental Quality recently proposed to update its regulations for implementing the National Environmental Policy Act. The proposed new regulations are modest in their scope; they largely focus on clarifying regulatory language and conforming that language with court decisions and long-existing practices. But the proposed regulations also talk about addressing climate change and environmental justice in NEPA reviews. Somewhat predictably, those mentions have provoked outrage, as has the entire regulatory effort.

A recent piece in Forbes captures the tenor of the debate. The author, an economist at the Competitive Enterprise Institute, described the proposed regulations as “a regulatory bomb that threatens to blow up infrastructure permitting reform.” He went on to assert that the proposed regulations are

a dramatic attempt to undermine bipartisan Congressional efforts to streamline energy and infrastructure project reviews. If finalized, this rule will lead to longer approval times, increased litigation risk, and mounting uncertainty surrounding the steps to obtaining a permit, all while throwing in doubt the viability of America’s ongoing clean energy transition.

This is ridiculous—the proposed new regulations are consistent with existing practices, and the best available evidence shows that NEPA has little impact on permitting associated with the clean energy transition—but most of its ridiculousness is a subject for another post. Today’s focus is another statement in the piece. The author also claims that, “[a]s the Supreme Court has repeatedly affirmed, NEPA is a procedural statute that does not elevate environmental concerns over other policy objectives.” For this reason, the author argues, it is wrong for the proposed rules to amplify goals like climate-change mitigation or environmental justice or to discuss mitigation measures for environmental harms.

The move here will strike many environmental lawyers as familiar. A common industry talking point takes statutes or legal doctrines designed to protect the environment and attempts to convert them into neutral referees of environmental disputes. I’ve heard this repeatedly in discussions of California’s public trust doctrine, which water-district attorneys routinely, and inaccurately, describe as a simple balancing test, with no thumb on the scales in favor of environmental protection. You can also see it in the Supreme Court’s recent Sackett decision, in which Justice Alito’s opinion for the Court studiously ignored statutory language declaring the Congress wanted clean water while emphasizing later language about empowering states, and Justice Gorsuch’s concurrence argued that the Clean Water Act is really just focused on protecting navigation. These revisionist readings have two goals. The first, and most obvious, is to tip the interpretive scales against environmental regulation. The second is to bolster arguments that these laws are just red tape. After all, if NEPA is just procedure, with no real goal of environmental protection, what’s the point?

But these attempts are wrong, and NEPA itself exemplifies the reasons why. That the statute does not establish substantive environmental protection requirements for an agency that completes an environmental impact statement has long been settled. But that does not mean the statute is neutral with respect to environmental protection. Quite the opposite; the statute begins by noting “the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man,” and goes on to assert “that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.” The debt-ceiling bill did not remove any of that language. After the bill, as before, the statute clearly is about protecting the environment, and it also is about protecting people who are impacted by environmental problems. To discuss climate change and environmental justice—two of our greatest environmental challenges—is consistent with this statutory orientation.

With mitigation, the story is a bit more complicated, but again, the discussion is appropriate. While NEPA is widely understood to have no substantive bite against an agency that completes an EIS, NEPA lawyers also have understood for decades that a federal agency that wishes to proceed with a discretionary action without preparing an EIS does have a substantive obligation. It must ensure that the action’s environmental impacts, if they exist, are less than significant. In other words, it must respect Congress’s determination that it is illegal to proceed with an action causing significant impacts unless the agency first prepares an EIS. Agencies often use mitigation to reduce impacts to less-than-significant levels, and it therefore is appropriate for the CEQ’s regs to address the level of assurance those mitigation measures must provide. To leave that assurance unspecified would be to risk widespread thwarting of NEPA’s most basic mandate.

- Dave Owen

The broader point is straightforward. When anti-regulatory activists try to take agencies to task for interpreting environmental statutes as advancing environmental goals, we should take their claims with some large grains of salt. Advancing environmental goals is the main thing environmental statutes were written to do.

September 13, 2023 | Permalink | Comments (0)