The Trump administration last month finalized sweeping revisions to the National Environmental Policy Act (NEPA), putting new boundaries on the public review process created by the landmark environmental law. It’s the latest in a series of more than 100 environmental rewrites made since President Donald Trump took office in 2016.
Created in 1970, NEPA has required that federal agencies assess the environmental impacts of proposed projects and involve the public before making decisions. The law applies to a range of actions, everything from building highways, methane plants and pipelines to wildlife management in national parks. Agencies have to publish their findings, allow timely public review, respond to public concerns and explore proposed alternatives.
In January, the administration proposed changes to NEPA regulations, saying they will help speed up the project permitting process and save money. The revisions, finalized on July 15, include page and time limits for environmental reviews, new requirements for submitting a public comment and updated categories of projects that can be excluded from an environmental review altogether. The new language also exempts agencies from having to consider “cumulative” environmental impacts, which refer to actions that have a significant environmental impact over time. For instance, as a result of climate change.
While proponents have applauded the move toward a quicker permitting process, critics say the revisions chip away at the transparency and public review that NEPA is intended to protect.
The revisions, slated to take effect Sept. 15., can be withdrawn and replaced by a future administration through the same process the Trump administration took. The revisions can also be delayed or invalidated if successfully challenged in court.
“This is a big deal. It’s a really big deal,” said Brad Brooks, acting senior director of agency policy and planning at The Wilderness Society. “It will forever change government transparency and the opportunity for the public to have a say.”
Read on for a breakdown of the impact of these revisions on public commenting and beyond.
What type of information do I have to provide when commenting?
The revised rules ask people to provide “substantive” comments supported by existing research, though the new language isn’t specific about how much or exactly what type of information would meet the threshold.
The new rules for commenting make it tougher for certain groups of people to participate in the environmental review process, said Todd Wildermuth, policy director of the University of Washington’s Regulatory Environmental Law & Policy Clinic.
It changes the playing field, he said. Now in order to comment, someone may have to be an expert, find an expert or have access to scientific articles, many of which cost money. This creates a lack of access for people who don’t have the time, money or expertise.
“You might be streamlining entire populations right out of participation,” he said.
Because the language is broad, Brooks said it opens the door for agencies to throw out comments based on their own discretion.
Andrea Woods, spokesperson for CEQ, the federal agency that enforces NEPA, confirmed in an email to the Co-op Journal that agencies will have flexibility in determining whether a comment meets the threshold to be considered. However, she said it’s not meant to limit public comment but rather to guide commenters in providing information that is useful for decision-making.
Woods didn’t provide specifics on the amount of information commenters must provide.
Brooks said he worries the new language could also allow agencies to overlook comments not rooted in science. For example, a tribal community might have a religious, not scientific, reason for speaking out against a project being built on Native land, Brooks said.
“It creates a very high bar for [people] to even meet the threshold for the government to even consider what they’re saying,” Brooks said.
Will the frequency of comment periods change?
The revised language doesn’t limit the number of comment periods for any one project, but new guidelines could ultimately change how many proposed projects require an environmental review.
Depending on the project, there are typically two types of documents created for environmental reviews: environmental assessments and environmental impact statements. Environmental assessments are usually reserved for projects where it’s unclear whether there will be a major environmental impact. They require a 30-day comment period. Environmental impact statements are typically required for large projects, like the development of major energy plants, and are followed by a 60- to 90-day comment period.
However, under the new rules, agencies can develop new categories of projects that don’t require an environmental review at all.
“It will mean fewer opportunities for people to comment and also the government won’t have to disclose [certain information],” Brooks said.
What about the duration of comment periods?
The duration of the comment periods won’t change; however, the public will be limited to commenting within the prescribed comment period. New language mandates that comments made after a comment period—including during litigation—be forfeited.
Previously, people could notify an agency of their inability to participate in a set public comment period and were able to submit comments after the deadline to be considered.
Will the revisions alter the way I can submit comments?
CEQ has updated NEPA to ask that agencies use electronic means when requesting public comments or distributing information about a proposed project. However, printed documentation will still be available for those who don’t have access to a computer or other technology.
How will environmental impact statements and environmental assessments change? How does it affect me?
Environmental assessments and environmental impact statements have page limits under the revised rules. They will be capped at 75 and 150 pages, respectively. Woods said the limits were decided to ensure documents are a reasonable length and in a readable format. Additionally, the revisions state that environmental assessments be completed within one year and environmental impact statements be completed within two.
The original NEPA rules suggested the same page lengths for environmental assessments and impact statements. Unlike the new language, however, these suggestions were flexible.
“Reinforcing the original page limits will encourage agencies to identify relevant issues, focus on significant environmental impacts, and prepare concise, readable documents that will inform decision makers as well as the public,” Woods said.
On average across all federal agencies, environmental impact statements have been nearly 700 pages and taken about 4.5 years to create. However, less than 1% of proposed projects rise to the level of requiring an environmental impact statement.
Brooks, with The Wilderness Society, said less paperwork isn’t necessarily a bad thing, but that a page limit could limit agencies from including important information in their environmental reviews.
“What are you going to do if there’s a NEPA document that’s trying to explain the consequences of a controversial project … but you hit your 200-page limit?” he said. “How are you going to thoroughly explain the consequences or thoroughly explain what’s happening?”
Will there be a price to comment?
No, there remains no price for commenting.
However, under the new language, agencies could choose to impose a bond on an individual or organization if the agency has to delay a project in order to consider its environmental impact. CEQ didn’t answer questions from the Co-op Journal in February about how much those bonds could be.
Brooks said this will especially impact working-class people who may not have the money to pay a bond.
“The people who are impacted by the polluters are not the top 1% … it’s the working-class American,” he said. “Those are the people who will not be able to hold their government accountable.”