CEQ Coms Director Touts the “Value” of NEPA By Noting that Most NEPA Processes Last Only a Few Days.

NEPA adds lots of value. It doesn't do so because it's usually brief.

Earlier this month, CEQ “Communications Director” Taryn Tuss posted a curious message on the office’s blog.  It touted NEPA’s “value” by reporting that NEPA “leads to better economic and environmental outcomes for communities.” [agreed]

But the post’s other two bullet points were that “[m]ore than 90 percent of environmental reviews are completed in a matter of days or weeks,” and that NEPA “doesn’t dictate decisions.”  Now both of those assertions are backed up by experience.  But do they really make the case for NEPA’s value?

The final and perhaps biggest curiosity, however, must be the “modernization” claims made in the post.  After touting the Obama Administration’s many efforts to modernize NEPA operations (of which there have been several, leading to many good outcomes), Tuss then lumps the Office’s December Climate Change guidance draft into the “modernization” pile.  It’s worth quoting at length:

In the latest step under this modernization initiative, in December we released updated draft guidance for agencies on how to consider greenhouse gas emissions and the impacts of climate change in their NEPA analyses.  Considering climate change and its impacts on Federal decisions falls squarely within the scope this [sic] bedrock environmental law. Many agencies are doing this already, and Federal courts have said they should.  What is missing is consistency in their approach. The guidance will provide agencies with a reasoned approach to addressing a clear environmental impact – climate change – in their environmental reviews.

The Lab’s critiques of CEQ’s various draft guidances on climate change can be found herehere and here.

Titanic Thud

Titanic Thud

One thing the latest draft won’t do, though, is “modernize” NEPA.  As “guidance,” it fails to “guide” and as NEPA’s treatment of climate change, it marginalizes both from the federal government’s real dilemmas where green house gas abatements are concerned.  As for the claim that “Federal courts have said” that “[c]onsidering climate change and its impacts on Federal decisions falls squarely within the scope” of NEPA, well, we can only respond: yes, in some cases they have.  In some cases, they’ve said quite the opposite.  Which is part of the reason why a real effort from CEQ on climate change is so urgently needed.

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.
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