NEPA

August 20, 2018

Submitted via Regulations.gov

Mary B. Neumayr
Chief of Staff
Council on Environmental Quality
730 Jackson Place, N.W.
Washington, DC  20503

Re:      Docket No. CEQ-2018-0001, Advanced Notice of Proposed Rulemaking (ANPRM), Update to the Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act

Dear Ms. Neumayr:

The undersigned members of the Choose Clean Water Coalition urge the Council on Environmental Quality (CEQ) to withdraw the ANPRM and retain the existing CEQ regulations implementing the National Environmental Policy Act (NEPA). The CEQ regulations establish common sense procedures and definitions that continue to serve the Chesapeake Bay watershed and the nation well. Changes to the regulations are unnecessary and would create significant inefficiencies and delays by upending decades of well-settled requirements and approaches.  

The Choose Clean Water Coalition spans the six states, Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia, and the District of Columbia that make up the Chesapeake Bay watershed. The coalition’s members range in size and scope from national to regional to the most local level, but share the vision of vibrant clean rivers and streams in all of the Chesapeake region’s communities. One of the main objectives of the coalition is to uphold bedrock environmental laws that protect our waterways, including NEPA.

 

The Choose Clean Water Coalition has a key interest in ensuring that the NEPA environmental review process works well. NEPA is the fundamental tool for ensuring proper vetting of the impacts of major federal projects on waterways and communities, for identifying less environmentally damaging alternatives, and for giving the public a voice on impactful federal actions. NEPA improves project planning, including reducing adverse environmental impacts of federal actions and by improving the quality of federal restoration projects. In this vein, we urge CEQ to withdraw the ANPRM.  Instead of considering or conducting a rewrite of the NEPA regulations, CEQ should instead undertake a systematic initiative to enforce the existing regulations. CEQ should also use its leadership role to ensure that agencies have the resources, training, and leadership needed to properly implement NEPA.

Comments

The existing NEPA regulations establish a uniform approach to efficiently implementing NEPA’s important goals and requirements through common sense procedures and definitions that, among other things, ensure meaningful opportunities to engage the public and other federal, state, tribal and local agencies in the NEPA process. Congress enacted NEPA to “declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.”[1]

These regulations were carefully developed with significant public input; they were the product of extensive public involvement and receptivity to the concerns of all involved segments of American society. When finalized in 1978, they were greeted with praise from a range of stakeholders, from the U.S. Chamber of Commerce to the National Governors Association to the Natural Resources Defense Council and the Sierra Club.[2] That inclusive process is in part responsible for the regulations having existed for four decades and through the administrations of seven Presidents with only one substantive amendment to one section.

Because of this, changes to the existing CEQ NEPA regulations are unnecessary. Any such changes would also be unwise. They would undermine the efficiency of the NEPA process by upending decades of well-settled requirements and approaches. NEPA has existed for forty years, wherein it has faced judicial review that militates in favor of keeping changes to the regulations to necessary minimums. There exists nationwide judicial experience with the law and the regulations which substantive changes can only undo. New provisions can only lead to new and expanded litigation. Several courts have stated the importance of NEPA, like “NEPA is more than a technical statute of administrative procedure. It is a commitment to the preservation of our natural environment. The statute’s language conveys the urgency of that task.”[3] Further, any amendments that are made must be adopted through the Administrative Procedures Act (APA) notice and comment provisions so as to preserve the “substantial deference” which the Supreme Court has accorded them.[4]

CEQ developed the regulations to provide a uniform approach to promote decision-making that reflects the policies set forth in NEPA and to include the public and other federal, state, tribal and local agencies in that process. The regulations reflect decades of case law developed through the federal courts, as discussed above. Additionally, the regulations reflect a concerted effort to expedite the process without losing either substantive value or public involvement. Because of this concerted effort, we believe that changes to any of the CEQ NEPA regulations are unwarranted. We highlight in particular the following three regulations that should remain intact because they are fundamental to the importance of NEPA:

  • Actions causing environmental impact should not be exempted from NEPA.
    • The Supreme Court has found that the preparation of an environmental impact statement promotes NEPA’s broad environmental objectives in two primary ways: “It ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decision-making process and the implementation of that decision.”[5]
  • The requirement to fully examine alternatives should not be eliminated.
    • The statute calls for a consideration of alternatives, stressing its importance as NEPA is not intended to just be an accounting of the impacts of something proposed, but an examination of other ways to meet a purpose and need that could have fewer impacts and often lower economic costs. The regulation (§ 1502.14) regarding alternatives has, since its promulgation, been central in ensuring that agencies rigorously explore reasonable alternatives and make informed choices. It is thorough and effective and should not be changed. Altering it would almost certainly weaken NEPA and have a deleterious impact on wildlife and the environment by allowing agencies to avoid adequately and rigorously exploring less impactful ways to meet the purpose and need and to avoid asking the critically important and basic question of whether no action would be a wiser course of action.
  • The public’s input into the NEPA process should not be reduced.
    • It is important to note that “[C]onsideration of the impacts of proposed government actions on the quality of the human environment is essential to responsible government decision-making. Government projects and programs have effects on the environment with important consequences for every American, and those impacts should be carefully weighed by public officials before taking action. Environmental impact analysis is thus not an impediment to responsible government action; it is a prerequisite for it.[6]

Last, the NEPA review process has been a critical component to the protection of the Chesapeake Bay over the last forty years. Numerous organizations - and members of the public - have actively engaged in the NEPA processes for the Intercounty Connector, Chesapeake Bay Crossing Study (a two-tiered Environmental Impact Statement) and countless other Environmental Impact Statements for major federal actions affecting the Bay. 

In 2008, the Mid-Atlantic Power Pathway (MAPP) was proposed by Pepco. This 152-mile extra-high voltage transmission line would have extended from Possum Point, VA to Southern Maryland under the Chesapeake Bay, and across the lower Eastern Shore into Southern Delaware. There were major environmental concerns related to this project as MAPP would have been the first time transmission cables crossed the Chesapeake Bay from shore to shore, impacting fish species and causing other disturbances to the Bay. When Pepco filed for a loan from the federal government, this triggered the need for an Environmental Impact Statement under NEPA. There were public hearings where residents voiced their concerns and also proposed alternatives to this project. As the public became more and more opposed to the project, elected officials began to ask questions and Pepco reneged. The project was cancelled in 2012.[7

Most recently, our members have been engaged in the various environmental review processes for the Atlantic Coast Pipeline. This project will cross more than 300 miles in the State, with over 890 crossings of rivers and streams that will lead to erosion and sedimentation in those waterbodies. The construction of the pipeline will require Dominion to clear 5,000 acres of land, including 3,000 acres of forest and 300 acres of wetlands. Additionally, much of the construction will traverse rugged terrain through steep slopes and karst geology characterized by sinkholes and caves that are hydrologically interconnected underground, threatening those water resources.[8] The environmental impacts associated with this project are substantial and a full and robust NEPA process is required to ensure that the agencies involved conduct a complete analysis of these impacts.

We anticipate other major federal actions in the years to come that will impact the Chesapeake Bay watershed. 

The existing CEQ NEPA regulations effectively address the objectives identified in the many questions posed by the ANPRM. We urge CEQ to withdraw the ANPRM and retain the existing CEQ regulations implementing NEPA.    

We thank you for the opportunity to comment on this important action.

                                              

Sincerely,

American Chestnut Land Trust INC

Anacostia Watershed Society

Audubon Naturalist Society

Baltimore Tree Trust

Blue Water Baltimore

Capital Region Land Conservancy

Chesapeake Bay Foundation

Chesapeake Conservancy

Clean Fairfax Council

Coalition for Smarter Growth

Conservation Voters of PA

Delaware Nature Society

Earthworks

FracTracker Alliance

Friends of Dyke Marsh

Friends of Quincy Run Watershed

Friends of the Nanticoke River

Friends of the North Fork of the Shenandoah River

Friends of the Rappahannock

Interfaith Power & Light (DC.MD.NoVA)

Lancaster County Conservancy

Maryland League of Conservation Voters

Mattawoman Watershed Society

Mid-Atlantic Youth Anglers & Outdoors Partners

Nature Abounds

PennFuture

Pennsylvania Council of Churches

Piedmont Environmental Council

Potomac Riverkeeper Network

Rachel Carson Council

Richmond Audubon

Rivertown Coalition for Clean Air & Water

Rock Creek Conservancy

Savage River Watershed Association

Severn River Association

Shenandoah Valley Network

Sleepy Creek Watershed Association

Southern Maryland Audubon Society

St. Mary's River Watershed Association

The Downstream Project

Virginia Conservation Network

Waterkeepers Chesapeake

West Virginia Environmental Council, Inc.

West Virginia Highlands Conservancy

West Virginia Rivers Coalition

 

[1] 42 U.S.C. § 4321. 

[2] See: “Streamlining NEPA—an Environmental Success Story,” 9 B.C. Envtl. Aff. L. Rev. 507 (1981-1982). 

[3] Aberdeen & Rockfish R. Co. v. Students Challenging Regulatory Agency Procedures (S.C.R.A.P.), 422 U.S. 289, 331 (1975) (Douglas J., dissenting).

[4]  Andrus v. Sierra Club, 442 U.S. 347 (1979).

[5] Methow Valley Citizens Council, 490 U.S. at 349.

[6] September 19, 2005 Letter to the Honorable Cathy McMorris, Chair of the Task Force on Improving the National Environmental Policy Act from Russell E. Train (CEQ Chair 1970-1973), Russell W. Peterson (CEQ Chair 1973-1976), John Busterud (CEQ Chair 1976-1977), Charles W. Warren (CEQ Chair 1977-1979), J. Gustave Speth (CEQ Chair 1979-1981), Michael R. Deland (CEQ Chair 1989-1993), Kathleen A. McGinty (CEQ Chair 1995-1998), George T. Frampton Jr. (CEQ Chair 1998-2001), Gary Widman (CEQ General Counsel 1974-1976), Nick Yost (CEQ General Counsel 1977-1981) (emphasis added).

[7] Protect NEPA, Buried Cables: The MAPP Transmission Project (Feb. 27, 2018), https://protectnepa.org/mapp-pepco-utility-lines/.

[8] Chesapeake Bay Foundation, Atlantic Coast Pipeline Natural Gas Pipeline, http://www.cbf.org/about-cbf/locations/virginia/issues/atlantic-coast-natural-gas-pipeline.html (last visited Aug. 10, 2018).