What’s the Real Value of a Tony Washington Address?

CEQ was on the move Friday. What does that portend for its future?

The mainstream media may be too wrapped up in the White House’s latest flogging of egos and dignity to have noticed this little NEPA tremor yesterday: the Council on Environmental Quality (CEQ) was evicted from its ancestral digs on Jackson Place, kitty-corner to the White House across Lafayette Square.  CEQ has been at that address for decades—and it’s been one of the very few things that all presidents, whatever their party, have afforded this diminutive, at times anonymous, agency.  The Post did do this story about the move, but as the (great) reporter Juliet Eilperin noted there, this isn’t exactly above-the-fold sort of stuff.

If this were just another trolling mission by the Trump Administration one would’ve expected more show of it, i.e., inviting the ‘leftist media’ to the unceremonious ejection, etc.  But by all accounts, it was simply a workaday office move freeing up some prime real estate.  So what’s next for CEQ?  Maybe the answer to that question lies somewhere in the agency’s past.

Those familiar with CEQ know it’s never been what was intended.  Modeled after the Council of Economic Advisors—another denizen of Official Washington without any regulatory powers but gravitas all the same—CEQ was intended to be the giver of über-important advice.  It was to be the presidency’s environmental oracle, its learned and trusted source of expertise on how this country might actually provide to every person the “healthful environment” NEPA aims for while at the same time reminding them of their “responsibility to contribute to the preservation and enhancement” of that environment.  42 U.S.C. § 4331(c) (NEPA § 101(c)).

Over the years that oracle has gradually, with the help of both Republican and Democratic administrations, become less gravitas than pencil pusher.  Through changes both statutory (immune from presidential whims) and administrative (a few of which we’ve reported on here and here), CEQ became in the last years of the Obama Presidency little more than a mouthpiece.  Its final “memo” on factoring greenhouse gases into NEPA documents was, to put it mildly, underwhelming.

Somewhere between 1970 and today the sort of “advice” an agency like CEQ-on-paper could give became less about expertise and more about politics.  To be fair, this wasn’t CEQ’s fault.  The ideal was unrealistic from the beginning: to put such an agency within the Executive Office of the President (EOP) just was to make that agency a function of POTUS’s agenda.  Scoop Jackson and Keith Caldwell were a lot of things.  Infallible wasn’t among them.  Yet the evolution from 1970 to today made CEQ into a certain kind of political animal.  It got wrapped up in the politics of window-dressing in Washington’s version of caring for the environment.  It became the kind of office which did not even rate well enough to get a Senate-confirmed “chair” because of Congressional hostility to POTUS’s largely unilateral environmental agenda of the past 2½ years.  Not that I’m a critic of that agenda.  I’m not.  But what could’ve been expected of a Trump Administration that campaigned not just against the Obama environmental agenda but against expertise itself?

So perhaps the message sent Friday as CEQ was moved out of Jackson Place is this: office space in the Old Executive Office Building (OEOB) just up the Avenue hasn’t exactly held back the powerbrokers who’ve worked there for decades.  The Office of Information and Regulatory Affairs is there and nobody who cares about a “healthful environment” thinks that has sidelined OIRA.  CEQ could be all that it’s been and more wherever their office space—if POTUS wants it to be.  The last Republican president didn’t have a CEQ chair confirmed until April.  By that metric, 45 could still surprise. Of course, for that to happen, he’d actually have to have something to gain from doing so.  He’d have to have something to gain out of making CEQ great again.  And what would that be in our current (toxic) political climate?  It’s not a rhetorical question—but it is an exceedingly hard one.  Maybe the first part of the answer is for people sympathetic to CEQ’s mission, and to NEPA’s, to check their temptations to scream.  That’s certainly not a whole answer.  But tony addresses in Washington are sometimes worth a lot less than they seem.

{Image: © NEPA Lab 2017}

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
One Comment

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  • David Keys
    6 March 2017 at 14:17 -

    It is probably safe to say that no president has made CEQ the agency its founders envisioned. President Carter did create the CEQ regulations, but he was not necessarily a fan of NEPA or CEQ, which puts him in the same boat as all of his predecessors and successors. President Clinton even tried to do away with CEQ in a bid to make EPA a cabinet level organization. Looking back, we sure could use that department of environmental protection now even though it would not prevent the president from appointing a political hack to run it. A department has much more political gravity than an independent agency like the EPA. I believe that a CEQ chair will be appointed soon for the sole reason that the January 24, 2017 Executive Order (EO) Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects is aimed at the CEQ chair. The CEQ chair in accordance with the EO is supposed to decide in 30 days if an infrastructure project is “high priority”, and if so, then “expedite procedures and deadlines for completion of environmental reviews and approvals for such projects.” I do not think this EO is legal. It amends the duties of the CEQ, which are prescribed by the NEPA Statute, Section 204, which lists eight duties and functions of the CEQ. Section 204 (4) states “It shall be the duty and function of the Council–to develop and recommend to the President national policies to foster and promote the improvement of environmental quality to meet the conservation, social, economic, health and other requirements and goals of the Nation.” The EO is not written with these duties and functions in mind. In addition, how is “high priority” defined? How does the CEQ chair factor in the costs and environmental impacts of these infrastructure projects, high priority or otherwise?
    As far as the CEQ being evicted from their offices, it does reinforces what we already know about the President, i.e. he is hostile to environmental protection. Of course President Reagan created OIRA in 1980 and it was a powerhouse from the beginning. CEQ never had that kind of influence and once EPA’s Clean Air Act Section 309 NEPA reviews began CEQ’s limited power started to wane. It seems to me that environmental professionals of all stripes need to have a proactive plan rather than “wait and see what happens.” We know what will happen because it is happening now with the various budget cut proposals in the President’s Budget to Congress.

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