Not Like This

I’ve ragged on NEPA and CEQA regulations in these newsletters many times before as being too restrictive on good projects that would help the environment. But I would never call for the removal of NEPA implementation regulations over night which is what the Trump administration is proposing in an interim final rule.

After the Chevron ruling reduced deference to agency expertise, environmental rules have gotten push back in the courts. What this likely means after a recent Trump executive order, is that agency guidance is moot and just a suggested path and increased litigation allow judges rather than policy experts determine whether projects violate NEPA. This would change in just a short few weeks how things have been done for almost half a century.

It’s likely illegal processes are moving this faster than would otherwise be allowed because there aren’t the initial notices or comment periods that would usually come with this big of a change. It might actually be a way to beat it because as courts have signaled they would be open to this change, the administration forcing it through is somewhat reckless. Bloomberg Law notes that interim final rules usually only come at times of emergency, which perhaps this is, but for different reasons that they believe.

While projects will still have to go through the process and create NEPA documents, I’d rather not have the foxes writing henhouse rules that judges have to interpret.

Do we need permitting reform? Yes

Like this? No