CEQ Issues Guidance For Streamlining NEPA Reviews: Can You Say “Content-Free”?

The Council on Environmental Quality has released it guidance on “Improving the Process for Preparing Efficient and Timely Environmental Reviews under the National Environmental Policy Act.” As far as I can tell, the guidance provides literally nothing on improving the process. It is instead a compendium of how wonderful the process already is in allowing and encouraging appropriate flexibility in complying with NEPA. I’m not sold.

In fairness, CEQ has a tough task here. It’s trying to satisfy everyone, including NGOs and environmental justice advocates, as well as project proponents. As I noted yesterday in my post on regulatory reform in Massachusetts, sometimes that’s just not possible. Sometimes, improvements require making some people unhappy. 

The second problem CEQ faces is that it is not the final decision-maker. The courts get to play that role. In my experience, the review process under NEPA is sufficiently mushy that courts can – and do – do whatever they want. If they like a project, they defer to the agency; if they don’t, then they conclude that the proponent did not give the project the “hard look” that NEPA requires.

The tension here is demonstrated by my favorite paragraph in yesterday’s guidance. It’s the first bullet in CEQ’s list of basic principles:

NEPA encourages straightforward and concise reviews and documentation that are proportionate to potential impacts and effectively convey the relevant considerations to the public and decisionmakers in a timely manner while rigorously addressing the issues presented.

Phew. Straightforward, proportionate, timely, and rigorous. Also trustworthy, loyal, helpful, friendly, and courteous, among other qualities. 

Sorry, it’s just not possible. We can decide as a nation that we will put up with the NIMBY consequences of encouraging maximum possible citizen involvement and review. What we cannot do is pretend that we can somehow streamline the process and at the same time keep that level of citizen involvement. Unfortunately, one agency’s streamlining is another citizen’s shortcutting.

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