Effectiveness of the Revised National Environmental Policy Act (NEPA)

Listen & Download

The National Environmental Policy Act (NEPA) requires agencies to assess major actions that could significantly impact the environment. A recent revision aims to streamline NEPA and make it more predictable. 85 Fed. Reg. 43,304 (July 16, 2020). The effective date of the revised NEPA regulations is September 14, 2020, so it remains to be seen how the revision will work in real world applications. In addition, multiple district court lawsuits are challenging the revision, including a pending nationwide preliminary injunction. Panelists from the government, a major trade association, and the private sector will discuss the practical implications of NEPA, the revision’s goal of removing roadblocks to modernizing infrastructure, and the litigation uncertainty.

Featuring: 

Karen Budd-Falen, Deputy Solicitor, Parks and Wildlife, U.S. Department of the Interior

Rachel Jones, Vice President of Energy and Resources Policy, National Association of Manufacturers (NAM)

J. Roger Kelley, Corporate Director of Regulatory Affairs, Continental Resources, Inc.

Moderator: Leland P. Frost, Associate, Crowell & Moring LLP

 

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138

 

Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at www.fedsoc.org.

 

 

Greg Walsh:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is titled “Effectiveness of the Revised National Environmental Policy Act (NEPA).” My name is Greg Walsh, and I am Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today, we are fortunate to have with us Karen Budd-Falen, a Deputy Solicitor at Parks and Wildlife at the U.S. Department of the Interior; Rachel Jones, a Vice President of Energy and Resources Policy at the National Association of Manufacturers; J. Roger Kelley, a Corporate Director of Regulatory Affairs at Continental Resources, Inc.; and moderating is Leland P. Frost, an Associate at Crowell & Moring.

 

      After our speakers give their opening remarks, we will go to audience Q&A. Thank you for sharing with us today. Mr. Frost, the floor is yours.

 

Leland Frost:  Thank you very much, Greg, for managing all of the technical aspects of this today. Like Greg said, my name is Leland Frost, and I’m an attorney at the law firm of Crowell & Moring in D.C.

 

      The National Environmental Policy Act, or NEPA, directs agencies to include in every recommendation a report on federal actions significantly affecting the environment, a detailed statement on the environment impact of the proposed action, any adverse environmental effects, alternatives to the proposed action, the relationship between short-term uses and long-term productivity, and any irreversible impacts on resources.

 

      Just as a little background on that, the White House Council on Environmental Quality, or CEQ, was actually established by Title II of NEPA. And in 1977, President Carter issued an executive order directing CEQ to issue regulations for implementing NEPA. CEQ promulgated those regulations in 1978, and those regulations largely remained unchanged for over 40 years.

 

      On January 10, 2020, CEQ proposed to substantially revise its NEPA implementing regulations to streamline NEPA and make it more predictable. The effective date of the revised regulations is actually today, September 14, so this is a very timely presentation. It remains to be seen how the revision will actually work in real world applications, and multiple lawsuits are currently pending challenging the revision.

 

      Our panelists today are from the government, a major trade association, and the private sector. And I will give a very brief introduction on each of them that will not at all do them justice but that will allow us to move on with the presentation.

 

      Karen Budd-Falen is the Deputy Solicitor for Parks and Wildlife at the U.S. Department of the Interior. At DOI, she works on issues relating to the Endangered Species Act, national wildlife refuges, and national parks. Prior to her current appointment, she served for three years in the Reagan administration as a Special Assistant to the Assistant Secretary for Land and Minerals Management. And she and her husband also owned a private law firm.

 

      Rachel Jones is the Vice President of Energy and Resources at the National Association of Manufacturers, NAM. Rachel oversees the energy and environmental policy work and has expertise on issues ranging from energy production and use to air and water quality, climate change, energy efficiency, and environmental regulation. Before the NAM, Rachel was the Environment and Energy Counsel to U.S. House of Representatives Committee on Science, Space, and Technology.

 

      Roger Kelley is the Corporate Director of Regulatory Affairs at Continental Resources where he provides advice and counsel on state and federal regulatory and legislative matters. His early career includes employment with the Texas Air Control Board, Sun Exploration and Production Company, and Kerr McGee Corporation. He spent 25 years of his career operating Kelley Engineering, Inc., providing production and regulatory services to independent producers.

 

      Now that I have sped through all of that, thank you very much to our distinguished panelists for taking time to present today. And we will also save time at the end for audience questions, so please feel free to think about what you’d like to ask our panelists. And with that, I will turn it over to Karen. Thank you very much.

 

Karen Budd-Falen:  Good afternoon. I’m Karen Budd-Falen with the Department of Interior. Hopefully, you can all hear me all right. I am very excited about the new NEPA regs, and hopefully industry and federal agencies will be excited about them as well.

 

      The purpose of the NEPA regs was to really try to get the regulations back into what Congress intended when it passed NEPA. NEPA is a procedural statute, first and foremost. It requires that agencies give a hard look to decisions on the environment that impact the human environment. Over the years, I think the courts, quite frankly, specifically the Ninth Circuit Court of Appeals, has worked very hard to add substantive considerations into NEPA. And so the point of these regulations is to get back to what Congress required as a procedural statute, not a substantive statute.

 

      I think there’s some very specific things in NEPA that really should help form the basis of what a NEPA document should look like. I would say the first big change is that if you look at the beginning sections, we talk about threshold questions. And these are questions that the agency has to answer before deciding whether to do NEPA or not. Each of the threshold questions comes out of a Supreme Court decision or a circuit court decision in one form or another. So it wasn’t like CEQ just made up a bunch of new threshold questions. We took current case law and simply codified it so that agency writers on the ground would know what to look at and whether NEPA applies or not.

 

      Another big decision that we made actually follows Interior’s requirements that we passed at the beginning of this administration regarding time frames and page limits. I represented private industry for 30 years before I came back to work for the administration, and I’ve got to tell you, for us, the most frustrating thing was to get stuck in an endless NEPA loop and never get a decision.

 

      Even if the agency eventually determined it could not do your project based on the procedural requirements of NEPA, at least you had a decision, and then you could go to court or change your decision or do whatever it was you want to do. But so often, what we found was that agencies would get stuck in endless NEPA redo trying to write a document to satisfy some court rather than giving you a decision so that your clients could determine what they were going to do next. So that was the biggest reason we put the time frames in there.

 

      And we put the page limits in there because, quite frankly, if you can’t explain the environmental impact on the human environment within 150 or 300 pages, then you simply are writing for the courts and not writing to make better decisions.

 

      Now, if you look at the way we structured environmental impact statements, we really tried to look at it almost like writing briefs for court. So the first big change was to create a much more solid notice of intent. The notice of intent is the first thing that you will find in a federal register that contains the purpose and need for the decision, that contains alternatives, it contains all of the scientific, environmental, economic, and other data that the federal agency is going to consider. And we are asking for comments on that documentation, including submission of any proposed alternative.

 

      Being a litigator for my career, one of the things that was most frustrating is to have an agency decision and then have some group come in at the end and sandbag you, saying, “You didn’t consider this alternative,” or “You didn’t consider this data.” So the reason we created a much more solid notice of intent is try to stop that sandbagging at the end and to force groups or individuals to come up with the information and the notice of intent so that the decision maker can actually consider the information instead of just lying in wait and trying to stop a project with a preliminary injunction.

 

      The regulations talk about additional participation by state governments, local governments, and Indian tribes. I have long believed that federal decisions have a more significant impact on the local area than they do nationally. And so we tried to create opportunities for state governments and local governments and tried to have a participatory opportunity in NEPA decisions.

 

      One of the other big changes was the definition of effects or impacts. Effects or impacts are those that are reasonably foreseeable and have a reasonably close causal connection to the proposed action or alternative. We actually talked about including the phrase “probable cause” in the NEPA regulations. The problem we found was, though, is if you’re writing regulations that some person in the BLM can follow who is, say, a range conservationist or an oil and gas expert, they’re not going to know what probable cause is. So we tried to spell it out by saying that agencies only have to consider effects or impacts that are reasonably foreseeable and have a reasonably close causal connection.

 

      And importantly, under the new regulations, effects include ecological, aesthetic, historical, social, and economic, including effects on employment. We also said that a but for causation is not enough to be reasonably certain.

 

      I’m not sure how long I was scheduled to give a presentation, so let me stop there. There’s lots of other various parts within the NEPA regulation that I could talk about, but I think a better use of my time is to stop now, and then we can work on questions and answers at the end. So if there are no other questions now, I would turn it over back to the moderator.

 

Leland Frost:  Wonderful. Thank you very much, Karen. I think the plan is to save questions for the end of the presentation.

 

Greg Walsh:  Mr. Frost, I’m not sure if it’s just on my end, but I’m having difficulty hearing you. Would you mind speaking into the mike a little bit more, or speaking more clearly? Thank you.

 

Leland Frost:  Can you hear me now?

 

Greg Walsh:  Yes, sir.

 

Leland Frost:  All right. Great. Karen, thank you so very much for that. I think the plan is to save questions until the end, so I will go ahead and turn it over to Rachel Jones at the NAM.

 

Rachel Jones:  Hi, Leland. Thank you so much. I appreciate the opportunity to have a conversation about really one of the most important, I think, permitting and federalism related changes that have happened in the last few years. So just kind of as a starting point, I won’t say too much. Karen obviously went through a lot of the content in a really helpful way. I appreciate all of your work on that. I’ll just maybe give a few -- a little bit of a color about what I hear from my membership and sort of our take on this.

 

      I would say, big picture, we really view this as being about fairness. A lot of us have talked about or in some of the press releases around all this you’ll see the word modernization. And I think that’s true to some extent, but I would really agree with what Karen said, which is this rule doesn’t really change in any way the statute, but rather I think really brings it back to the original intent and what Congress was trying to do. Along the way with all the litigation that’s happened on NEPA, you’ve seen confusion pop up, and different interpretations from difference circuits, and you’ve seen federal partners want to do more and more to try to make sure that they can avoid litigation or poor outcomes in litigation.

 

      And so we really appreciate the administration taking the time to say, “Let’s go back to the statute. What does it say? Let’s look at what the courts have said. And it’s been 40 years. Let’s put out new regulations that provide more clarity.” And what that ultimately does is strengthen the statute. When you can take things and make them clearer, have greater collaboration up front with localities, with different stakeholders, all these things, what they ultimately do is strengthen the statute. And when I hear reporting or I see detractors saying things that this would weaken an environment statute or in some way try to rewrite it, sometimes I wonder if they’ve actually read the rule or if they’re just grandstanding.

 

      But we really appreciate all of the details that Karen went through. Obviously, for my membership, I’ve got members who are a part of building big things like highway projects, whether that’s updating something that’s existing or building something new, folks working on the modernization of the grid. That’s really critical. Folks working on all sorts of projects, obviously infrastructure projects, but also other projects that may be a lot smaller and aren’t going to get national headlines.

 

      But for a lot of them, they’re also maybe not the project proponent, but they’re several steps removed. And those are the folks that I’m most excited about this for. Ninety percent of manufacturers are small and medium sized guys, and they may not be project proponents on a lot of these different things, but they are supplying critical elements and components.

 

      And like I said, they might be several steps removed, and so the uncertainty and the timelines and sort of the gameplaying that Karen was talking about that NEPA has been abused historically, it ultimately really undercut the folks who are a couple steps removed on projects. And so I’m really excited about some of they ways that they’ve really, I think, clarified things, made it more about protecting the environment and less about just playing legal games and that endless NEPA loop that Karen mentioned.

 

      So I’m happy to talk through different elements and aspects and take any questions. But just as a bit of a thumbnail sketch, that’s how we’re viewing this important clarification and strengthening of NEPA. Thanks, Leland.

 

Leland Frost:  Thank you very much, Rachel. And now on to our final panelist, and then we will get into more of a conversation and questions. Roger, we’ll turn it over to you.

 

Roger Kelley:  Okay, thanks a lot. Listen, I wanted first of all say amen to everything Karen and Rachel have said. I could probably stop right here and you’d have a good discussion already. I’d just like to say that CEQ has done a commendable job in their release of this latest NEPA rule in preserving the original intent.

 

      Now, it’s one thing when we look at regulations. Regulations tend to grow on their own sometimes. They get beyond the original intent. They grow a life of their own sometimes. We call that regulatory creep. And sometimes we have to pull back a little bit, and I think that’s what we needed to do with NEPA.

 

      I agree with Karen. They said modernizing, I think, was a kinder, gentler way of saying they were going to go back into fixing the statute, fixing the statute so that it’s not used -- a term I’ve heard lately is weaponization of a rule. And it is used more as a tool of destruction rather than a tool of construction that would do what it was intended to do, which was the overall protection and preservation of the human environment. And we’ve seen that a lot in our business, whether it’s in the drilling of oil wells, developing of projects or infrastructure, development that is critical to our business.

 

      Now, NEPA projects have gotten out of hand. I’ve seen projects all over the country, where environmental impact statements would take eight to ten years, held up by one thing or another in that endless NEPA loop that Karen was talking about, where everything was taken to an exhausted level. There were things that were considered necessary that weren’t really reasonable, but anything that could be used, it was almost like it was a “gotcha” game where you were trying to actually stop the project. And in some cases, I think that was the intent was to try to stop the project so that it wouldn’t go forward.

 

      I think this rule puts some time constraints on projects, time constraints on agency review. The lead agency process that was described in it is amazing. The one federal decision that the President asked for in his executive decision was kept intact in this rule so that everybody is given the chance -- the notice of intent is put out there. Everything is clear. Every agency is given their chance to look at -- get the first brush right away and not take forever to go through -- go from one to another.

 

      We’ve had projects -- well, we did a multi-development project up in North Dakota where were going from agency to agency. And what should have taken twelve months took five years, and we’re still looking at part of it on a project that couldn’t be developed. And it would go from one agency to another, going for the same review on the same data and the same information on every agency, and it might sit on somebody’s desk for year or less for no good reason. It was costing people money, costing the taxpayer dollars, costing the company dollars, and costing the American people a lot of money. So these -- I think this rule has made the process more efficient, it’s maintained the integrity of the process, and it’s also maintained the integrity of the human environment.

 

      So all the things that were done in this rule I think were good. We don’t have time for, like Rachel said, for an exhaustive review, and I’m not going to go into that right now. But I just think overall, the statute -- the rule, rather, is well constructed, well written, and it has just the right components put in there that will help with the NEPA process, help it where it won’t be used anymore as a tool of obstruction.

 

      And that’s exactly what it’s been used as in some places. Some issues it hasn’t. Some things have been done well with NEPA. It’s not all been bad, but there have been some situations where we run into, whether it was infrastructure projects, and that one right now going on is the DAPL pipeline where they went to all lengths to protect the environment, to be more -- have a greater integrity. They went twice as deep under the river as they needed to go with the pipeline. They used leak protection systems. And they still almost got -- we almost had it shut down until a month ago. So I think -- overall, I think it’s a good rule. We’re pleased with what’s going on there. And that’s all I’m going to go into right now. Leland?

 

Leland Frost:  Well, thank you very much, Roger. And maybe I will kick it all back with a conversation question for all of you prior to us going into questions. I think we’ve got plenty of time left here. I guess that’s kind of the moderator’s privilege.

 

      For those of you who are talking with people who work with this every day, who care about this, who have pending projects, what are you hearing or what would you tell them as far as how they should be thinking about this with all of the lawsuits that are pending and uncertainty around the lawsuits? Not commenting on the actual litigation itself, but just kind of with the pending uncertainty for what the near-term future of this is going to look like. What are they doing? What would you tell them they should be thinking about when they’re looking at projects that are pending or potentially new projects as the rule is coming into effect? And feel free to comment, any of you.

 

Rachel Jones:  Well, Leland, this is Rachel. I’ll give at least an initial answer, which is kind of as you said. Look, this is not going to be a super quick process. I think as Roger mentioned, CEQ did an incredible job working with all the different federal partners to take their time. Some folks had pushed them to move a lot faster. But I think it was a very thoughtful process. They really reached out well to stakeholders and listened too. And you can see in the final rule a good consideration of all the different comments that were made.

 

      But as we all know, it’s been 40 years since they’ve done this. It’s going to take a little while for it to all settle into place. And so that’s one of the things that I think most companies who’ve been engaged in permitting understand that. It would be great if we could wave a magic wand and this was just totally in the rearview and locked in, but the reality is that it’s going to continue to take litigation. That’s going to happen. That’s normal. That’s to be expected.

 

      The other piece that I know has been really important from the outset to a lot of my member companies is that implementation and those regs that’ll come out of different departments and agencies -- and I know Interior’s done a great job taking the lead in recognizing this and doing it. But those -- the actual on the ground implementation that takes place with the different federal partners as well as state working through some of the new and early consultation things, those take time to get used to and to really grease the wheels and make sure that everyone’s taking advantage of those.

 

      And so folks understand that this isn’t necessarily an overnight game changer. It takes time. The implementation really matters. Resourcing at agencies really matters. Making sure that you’ve got the right personnel, that they’ve got the right training on following a new rule, all of these things are going to be critically important to seeing this through.

 

      So I would say folks are incredibly encouraged and excited about this, but also realistic in that it’s not a silver bullet. And the other piece of it, I would say as well, is that there are a number of other permitting statutes, and I would say in particular the Clean Water Act, that has been weaponized, I think, in the last few years in a similar way to NEPA. And so you’ve got to kind of be able to get through all of the wickets at once. So I think I’m giving sort of the take advantage of this, but don’t be disappointed in the fact that it takes a little time, and that’s to be expected.

 

Karen Budd-Falen:  This is Karen. I can tell you what Interior is doing. Secretary Bernhardt and I were heavily involved in writing the CEQ regs, and Interior is going to lean as far forward as we can in getting these implemented. We sent our draft, DOI implementation regs, to CEQ on Friday for their 30-day review. We have a department-wide training at the end of this month which will be two days of going through this with not just Solicitor’s Office but with the agency officials on the ground who actually have to write these NEPA documents so that we can work on explaining all this to them.

 

      We are working on agency guidance in manuals and handbooks now because we are really excited, at least for our part, to get this implemented. And while it will take time, I certainly agree with that, we were not going to wait for a year to do our agency compliant regulations, which is what it says in the CEQ regs now.

 

      I can tell you the other thing that we’re doing is we’re trying to look at other agency actions that can be combined with the NEPA document to see if we can’t find efficiencies there. ESA Section 7 consultation really is its own ballgame. It’s got its own timeline. So we’re not looking at that one.

 

      But the one we’re looking at is National Historic Preservation Act. And we are trying to brainstorm ways to make sure that NHPA compliance, which your industries also have to do, is completed within the timeframe of the NEPA compliance so that you don’t have the problem of just jumping through one hoop and then you have to start through another hoop, at least on the DOI side. So we are being aggressive. I’m over-the-moon excited about these regulations, and we’re going to work really had to get them implemented.

 

Leland Frost:  Karen and Rachel, thank you. Go ahead.

 

Roger Kelley:  Leland, this is Roger. I appreciate what Karen’s saying there. I know that we’ve worked with Interior. And one thing we accused of a lot of times as an industry is not wanting to be regulated. But regulations keep us competitive. And what we want are regulations that are reasonable, that make sense.

 

      And what we have found is when we have an opportunity to sit down with an agency and not tell them how they’re regulating us, but tell them how we operate and how things work, and what things work and what things don’t work, and that whole process, if we can get agencies working together.

 

      And I was at an energy conference just last week with Secretary Brouillette with Energy, and they were looking at something that FERC was doing, a review they were doing on LNG facilities. And they were doing the same review. And they thought, “Well, why are we both doing the same review? Let’s maybe just one of us do this review and the other one just look at it.” That’s the kind of efficiency we’d like to see in government.

 

      And I think this -- I appreciate what Karen’s saying about Interior. They’ve done a tremendous job, I think, of doing that themselves. And this is a good move in the right direction. I think it is going to get challenged. We knew it was going to get challenged in the courts. But like I said, I think the agency took their time and put together [inaudible 30:53] document.

 

Leland Frost:  Thank you all for those insightful comments. And the point about historic preservation is well taken. I’ve actually got a case pending on that exact issue right now. Greg, are there callers on the line with questions?

 

Greg Walsh:  We’ll now go to the first question.

 

Jeff Wood:  This is Jeff Wood. I want to thank everybody for today’s comments and for this helpful panel discussion. I guess my question is just related to the litigation. I know NEPA is one of the biggest priorities for the administration, particularly in defending it in court, hoping it can get implemented and put into practice as soon as possible. Obviously, there was good news on Friday in that regard for the administration when Judge Jones in the Western District of Virginia denied the challenger’s attempt to enjoin implementation of the NEPA rule, so they’re in effect as of today.

 

      But I was just curious if any of our panelists had any thoughts on how they see the litigation unfolding here and whether there’s any tea leaves that can be read based on the judge’s ruling or how they might see things play out over the next several months and into next year.

 

Karen Budd-Falen:  Well, this is Karen from Interior, and maybe I can start the discussion. For those of you that don’t know, we’ve had three separate cases filed against us, the one in West Virginia and then two in California. And the two complaints in California in the request for relief talked about preliminary injunctions, but no motions have been filed in those cases. So I don't know whether they’re going to make the attempt in the California cases to move for a PI since the one on Friday was denied.

 

      Department of Justice in the one in West Virginia has also filed a motion to dismiss. The judge in his opinion said he was going to take that under advisement. I don’t really know how that’s going to come out. The motion to dismiss is exactly what you would expect for ripeness and standing and that kind of thing.

 

      If you look at the complaints, they were really interesting because I would say on all three complaints, at least 75 percent of the complaint was trying to establish standing, and then the causes of action were pretty much like you would expect. They complained about the fact that we did not do NEPA for the NEPA regs. They thought that we ought to do an EIS to implement the NEPA regs. They complained about Section 7 because they believed that it would have an adverse effect on species. And then they complained about arbitrary and capricious under the APA.

 

      So the complaints weren’t anything that I thought was new or novel or exciting. I’m sure it won’t be a surprise to you, but DOJ is working to consolidate everything into a single case just because litigating the cases in different venues with different judges would be a nightmare, and there would be -- there’s a great concern with not having a -- there could be a split or whatever. So we’re working to consolidate them.

 

      I don't know that I expect that we’re going to see another challenge. The challenges were by the people that normally challenge the administration. I don't think there’s another major group out there that we expect a challenge from. So at least that’s where we think things stand so far.

 

Rachel Jones:  This is Rachel --

 

Greg Walsh:  -- I’d like to remind callers that they can -- Rachel, go ahead.

 

Rachel Jones:  I was just going to add not a whole lot more on that. I think this is going to take a while. But I have heard some rumors from ENGO circles that obviously they’ll be looking at as applied challenges. And obviously, it’s so early in the litigation. It’s hard to know. But that certainly is a path that we’re on the lookout for.

 

Greg Walsh:  The queue is wide open right now. Leland, do you have any discussion questions?

 

Leland Frost:  Yeah. While we’re waiting, I’ve actually got, Karen, one more for you, if you don’t mind still being on the phone on point here. If you’ve got one or two suggestions for project proponents for what they should be doing and thinking about that that would be most helpful in streamlining projects and bringing them forward, what would those suggestions be?

 

Karen Budd-Falen:  Sure. I would say one of the most important things is to work with the agency on the purpose and need for the environmental document. I’ve seen those come across my desk where the purpose and need was written so widely that you could have a million alternatives and you would never get to the answer for the project. The regulations now specifically state that the purpose and need, if you’re talking about a project with an applicant, has to consider the needs of the applicant. So I would really work hard with the agencies to make sure that the purpose and need is correct.

 

      The other big change in the purpose and need section is that the agency only has to consider things that are within the agency’s jurisdiction. So before, alternatives could include alternatives that the agency could never implement, either because of statutory jurisdiction or because of money or because of manpower or whatever. And we took all that out to say that when you’re looking at alternatives, alternatives have to be within the statutory authority of the agency, and they have to be alternatives that the agency can implement.

 

      So I would make sure that your applicants really work to get those things put together as part of the notice of intent, and I think that’ll help the NEPA document then go smoother on the back end if you really put in the work on the front end.

 

Greg Walsh:  We have a caller from area code 941. Let’s go to them now.

 

Caller 2:  Hi. I just have a question. What would you guys say the role of the states are in the new NEPA changes? Do they still have the same standing as before, or would you say it’s greater, less? What are your thoughts on that?

 

Karen Budd-Falen:  This is Karen. I would say the role of the states -- they’ve got the same ability to participate as before, but one thing about the states as well as local government is that because we made a stronger connection between non-environmental issues such as jobs, as economics, that’s always been part of NEPA. But it was always sort of given kind of -- it was sort of an afterthought in so many environmental assessments and environmental impact statements.

 

      And I think that the new regulations have a much greater opportunity for states or for local governments to participate to really talk about those issues as well as part of the effects. States still can have joint leader cooperating agency, depending on whether the state has got an environmental statute or not like California Environmental Quality Act or whatever the other states’ environmental acts are. So all that stuff remained the same. So I really think the change for states is that when a state participates in NEPA, it can also look at not just environmental impacts but social impacts and economic impacts as well.

 

Rachel Jones:  This is Rachel. I would also throw in -- this is in some ways kind of basic, but I think folks skip over it, which is that a lot of states, but even more so than states, obviously counties and cities, tribal governments, don’t have tremendous resources. We’re all in a resource constrained environment right now, and so by making sure that we could simplify and the bringing down of something as simple as page limits actually lets more people get to participate in the process.

 

      When you end up with these incredibly long documents, it can actually be an inhibitor to having state and local engagement in a meaningful way because you’ve made something so technical. So I think something -- and that’s some feedback that I’ve received just from talking to some of our state partners is just that they’re excited because they feel like they’ll be able to participate in a more meaningful way in the process.

 

Greg Walsh:  The lines are wide open right now.

 

Leland Frost:  This is Leland. I’ll throw one question actually at Roger. Since you have had the private sector experience for so long with this, could you maybe -- and you touched on this just a little bit, but could you maybe walk us through an example of when you’ve had to deal with this and more of the details of the project impact NEPA has had for you in private practice?

 

Roger Kelley:  Okay, Leland. I’m having a hard time hearing you there, but I think I understand what you’re saying. On a major development project, we run into the situation where we -- the biggest thing has been with the interagency -- problems with the interagency cooperation. We’ve had some citizen complaints. We’ve had some interaction. We’ve had some stoppage there.

 

      But a lot of it’s been just different federal agencies working with one another, but not working with one another, if you know what I mean. One agency gets it. We go talk to them, and they say, “Well, we’re waiting on this other agency.” And we’re talking to them, and they say, “We’re waiting on another agency.” And it’s going back and forth.

 

      And that one project I described was up in North Dakota, and it just -- it was amazing. It was amazing. It was very frustrating. It was costing us a lot of money. It was delaying a project. It delayed it for five years to the point that where at the end of the five years where we were going to put a road through couldn’t be done anymore, so we had to go back to the drawing board again. When you draw out a project that long, it could either stop the project, or it could change it, or it could just make it less economical or uneconomical. And those are the concerns that we have with it.

 

      I liked what Rachel said about having it more simplified. That’s one thing I thought about when the only people that can really afford to hire the folks to look at these projects are some of the NGOs who have a lot of money, can spend a lot of money looking at a 5,000 page document, as opposed to a 300 page document that citizens can look at or citizen groups could look at, then they’re more apt to have more informed input into the project and it’s not as exhaustive as it could have been.

 

Leland Frost:  Thank you very much, Roger. Greg, are there any other pending questions?

 

Greg Walsh:  There are not. Leland, are there any concluding thoughts you’d like to share or elicit from the experts?

 

Leland Frost:  That’s exactly what I was about to do. I will turn it over to our panelists for any final thoughts that they would like to leave us with.

 

Karen Budd-Falen:  Okay. This is Karen. I will start. I want to thank The Federalist Society for hosting this conference. Just from the standpoint of a private practitioner that did property rights and environmental law for 30 years before coming to Department of Interior to work on this, I do think this is one of the biggest changes that this administration could have done. And I think that we achieved the goal of getting back to what the Congress truly intended with NEPA.

 

      I forget which expert called it regulatory creep. That’s exactly what had happened, and agencies were writing NEPA documents to satisfy the court rather than to satisfy the statute. And so we are thrilled with how the new NEPA regulations came about. I think that this does truly bring us back to a more balanced interpretation and the original congressional intent, and hopefully we can win all of these litigation challenges and truly implement what I believe is the original intent of Congress.

 

Roger Kelley:  This is Roger. I’ll add my comments to Karen’s. I think that the process has been improved tremendously. It’s going to help infrastructure projects over across the nation. I was the one that came up with regulatory creep, but I did not coin that phrase. I’ve heard that before.

 

      But federal regulations like CEQ under this administration have been changed. A lot of them have been changed. DOI has done tremendous work on looking at the regulations and trying to make them more reasonable. The catchphrase we’ve heard a lot in our business is, “We’ve got a new solution looking for a problem.” Oftentimes, when we have politically driven regulations, that’s what happens. They’ve got a political purpose, a political agenda this regulation is trying to achieve. And they use what’s been termed as end-oriented science. They go find the science that supports their position, then they come up with a regulation that fits it.

 

      And the end result is there is no measurable cure. If there’s not a measurable cure to any regulation or any rule or any statute, then that statute hasn’t served a purpose. It’s only cost the American people in the end a lot of money and nothing gets done. Other things could have been done that were more valuable. So I think that’s one thing that we’re really excited about this rule.

 

      I know it’s going to be -- I think the implementation is going to take some time. The agencies are going to have to get in lockstep behind it and figure out what’s going on. I appreciate interior for getting ahead of the game. But it’s something that can help the country.

 

      The infrastructure needs to be built, whether it’s a highway, whether it’s a power plant, whether it’s a dam, whatever we’re talking about. When we first started talking about NEPA in graduate school in 1976, we were talking about big things like dams and highways. Now, we’re talking about farm loans. I think we’ve grown beyond the original intent. We’ve pulled back to that, and that’s really, really important.

 

Rachel Jones:  This is Rachel. And I wholeheartedly agree with both my colleagues on the panel. And thank you again, Leland, for pulling this together. I would just maybe make a -- taking a step back, and thinking about what’s the impact of this, and why, and what does it mean for my little nieces as they grow up in coming decades?

 

      For us in the manufacturing family, this is a critical time to have moved forward with I think something that will help in a tremendous way in permitting. And one of the biggest reasons I say that now is a critical time -- the conversations about onshoring and strengthening manufacturing supply chains that we’re all having. COVID has obviously made us focus on and understand better the critical importance of every link in supply chains and the desire that you see across the political spectrum. It’s really a post-political view, I think, that strengthening American manufacturing is important, not just for economic and national security purposes, but also environmental purposes. We make things cleaner and better here than almost anywhere in the world.

 

      And so one of the things, though, that we have -- it’s very clear as we’ve talked to a number of companies and we’ve looked at what are the things we need to do in this onshoring conversation, and what are some of the hurdles that companies face with continuing to grow American manufacturing. And it’s permitting. And when you keep peeling back the layers of the onion, if I want to put in a new facility somewhere, you have to have the infrastructure in place first to be able to do that; the water, the pipelines, the power, the roads, the bridges, rail infrastructure, all of these different things.

 

      And NEPA really has been, because of the abuses, because of the litigation, because of that regulatory creep, has been a limiting factor in our ability to do those things here in the United States compared with other modern countries. And so I’m excited about this in the bigger picture as much of the national conversation talks about strengthening supply chains and onshoring that this is going to be a critical piece of the foundation that makes that a possibility. So thanks again for having this conversation today, everyone.

 

Leland Frost:  Yes. Well, thank you all. Thank you to our listeners for joining us today. Thank you to Greg for moderating the technical aspects of this. Thank you to Karen, Rachel, and Roger for your very insightful comments and your time today. I think this is a wonderful panel, and we really appreciate you all joining us today.

 

Greg Walsh:  On behalf of The Federalist Society, I want to thank our speakers for the benefit of their valuable time and expertise today. We welcome listener feedback by email at info@fedsoc.org. Thank you all for joining us. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at www.fedsoc.org.