Recently, the Council on Environmental Quality (CEQ), which operates within the Executive Office of the President (EOP), sent guidance stating, “Federal agencies must revise or establish their NEPA implementing procedures (or establish such procedures if they do not yet have any) to expedite permitting approvals….” The memo stated that resulting NEPA regulations must expedite permitting approvals and meet deadlines established by NEPA. They must also prioritize efficiency and certainty over any other policy objectives that could add delays and ambiguity to the permitting process.
CEQ did not explain how this would be accomplished, but it is somewhat problematic because current laws and regulations do not allow for an efficient and certain process, which this guidance does not change.
After more than 45 years handling regulatory issues both in the Corps of Engineers and private sector, including drafting regulations and interagency agreements, I have a number of reactions to this memo.
First, while it probably seems like good news for permit applicants and regulated industries, the reality is likely to be the opposite. Start with an important caveat in the CEQ guidance which is Footnote 3:
The contents of this guidance do not have the force and effect of law and are not meant to create legal rights or obligations with respect to any public party. This guidance does not establish new policy requirements. This memorandum is intended only to provide clarity to agencies regarding existing requirements under the law or agency policies.
In my view, this throws cold water on any prospects of this guidance achieving its objectives. This likely means business as usual except now with greater litigation risk and potential for regulatory delays. That’s because it provides guidance in conflict with requirements driven by current laws and regulations and creates unrealistic timeframes, which if met, will likely create substantial legal vulnerabilities.
Second, I’ve seen similar White House and agency efforts through the years that backfired on proponents. An example is the Infrastructure Dashboard that was created by CEQ during the first Trump Administration. The intent was to fast-track important infrastructure projects, but from my personal experience it caused substantial wasted effort by the regulated public, and did not result in fast-tracking or any other appreciable benefit to infrastructure projects.
That’s why one should not expect meaningful regulatory relief until new NEPA regulations are promulgated in compliance with the Administrative Procedures Act (APA) that establishes procedures to accomplish what is intended in a manner consistent with existing law.
Third, instead of meaningful change, this guidance establishes an unrealistic one-year schedule for all Federal agencies to revise/publish and finalize NEPA implementing regulations after requesting and addressing public comments, in consultation with CEQ and approved by the Office of Management and Budget (OMB) with potential for interagency coordination before being approved for agency implementation. Based on my experience, I would judge this process to require about 2 years to complete.
In short, I see this guidance likely having the opposite effect of its stated goal. I see it causing greater confusion, delay, and financial risk for applicants.
Dave Barrows
Senior Advisor
Before joining Dawson, Dave Barrows was Chief of Regulatory in three Districts, Chief of the Regulatory Technical Section at Army Corps of Engineers Headquarters, and Regulatory Advisor to ASA(CW).
コメント