Rebecca Barho Comments on Revised National Environmental Policy Act Rule

07.16.2020
Law360

Rebecca Barho was quoted in the Law360 article, “WH Tweak To Enviro Review Rule May Bring New Headaches” (subscription required). The article examines the impact of the Trump Administration’s recently released rewrite of the National Environmental Policy Act (NEPA), which governs how agencies conduct environmental reviews.

In the rewrite, the White House clarified how agencies should analyze the impacts of environmental trends such as climate change during a NEPA review, while declining to completely spell out what types of projects are exempt from NEPA reviews. Industry watchers have said that this is one of the elements that gives the final rule a greater chance of heading off legal challenges by avoiding clear language, but that it could create new problems by leaving certain terms up to agencies to define.

Commenting on the development, Rebecca said that NEPA regulations have not been updated since the Council on Environmental Quality (CEQ) first published them in 1978. The final rule was a "massive undertaking" that had to “incorporate years of court rulings and guidance issued by different presidential administrations.”

She added that in the rewrite, one “important way the council slightly softened its stance on a key issue in the final rule: While it hews closely to the initial proposal to restrict how climate change can be considered in project applications, ‘environmental trends’ are now part of what agencies are directed to consider.”

In January 2020, CEQ proposed restricting the definition of what "effects" — such as climate change — must be considered in project applications. The final rule directs agencies to consider trends, including those that can be attributed to climate change, in analyzing the existing conditions at the site of a proposed project, called the baseline. But CEQ bars agencies from characterizing climate change as an effect of a proposed action.

"I think probably CEQ recognized that the issue of climate change may be a flash point for litigation," Rebecca said. "I think it gives the agency a better argument that it did, in fact, address climate change in the final revised rules. But…that organizations will probably still be dissatisfied with that."

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