President Donald Trump’s August 15, 2017, Executive Order (EO) on improving the federal environmental review process may set the stage for changes to regulations affecting how states participate meaningfully in such reviews. The EO was directed mainly at the Council on Environmental Quality (CEQ), the federal agency that implements the National Environmental Policy Act (NEPA). Among other things, the EO instructed the CEQ to form an interagency working group to review NEPA-implementing regulations and other environmental review and authorization processing policies. The Western Governors Association (WGA) views the EO as an opportunity to strengthen the state-federal relationship in the environmental review process. In a recent letter to the CEQ, the WGA provided recommendations on modernizing the process, with an emphasis how to meet EO’s direction to develop “more clearly defined responsibilities for cooperating and participating agencies.”
Cooperating and participating agencies
Under NEPA, a cooperating agency in an environmental review is any federal agency, other than the lead federal agency or lead agencies, that has jurisdiction by law or special expertise with respect to any environmental impact involved in a proposed project or project alternative. A state or local agency of similar qualifications or, when the effects are on lands of tribal interest, a Native American tribe may, by agreement with the lead agencies, also become a cooperating agency. Participating agencies are those “with an interest in the project.”
While statutory and regulatory language exists that purports to give a role to cooperating agencies in environmental reviews, the WGA—and many other states—have long expressed concern that their input into the NEPA process does not carry the appropriate weight in the final Environmental Impact Statement (EIS), as well as in less comprehensive environmental assessments (EAs). Hence, as the CEQ carries out its responsibilities under the EO, the WGA writes that the CEQ “should not expand the role of lead agencies at the expense of cooperating agencies or further limit the roles of cooperating agencies.”
More substance for state agencies
An attachment to the letter provides nine recommendations, including:
- Ensure that cooperating agencies are involved in meaningful, substantive, and ongoing government-to-government consultation throughout all stages of the NEPA process. The WGA notes that CEQ regulations do not require the lead agency to incorporate or respond to cooperating agency input, and CEQ guidance places the means and extent of cooperation solely at the discretion of the lead agency. Accordingly, the regulatory directive to cooperate “needs more substance to ensure there is a two-sided, government-to-government exchange of information and ideas,” the WGA states.
- Guarantee that the coordination and consultation requirements in other federal statutes are respected, regardless of whether an agency is designated as a cooperating agency. This recommendation appears to relate specifically to the roles of states set out by the Federal Land Policy and Management Act’s (FLPMA) consistency requirements and the National Forest Management Act’s coordination requirements. States must meet requirements in these statutes, regardless of whether they are designated as a consulting agency.
- Require the EIS/EA to (1) incorporate state environmental review requirements in addition to but not in conflict with NEPA into an EIS/EA; and (2) be consistent with state and local plans and laws to the maximum extent possible. While it is the clear intent of CEQ regulations to reduce duplication, there is no clear directive for a final EIS/EA to incorporate state environmental review requirements that go beyond federal requirements or to ensure consistency with state and local plans. Such a clear requirement would reduce potential confusion due to the overlap of the FLPMA and NEPA.
- Require the use of cooperating agencies’ environmental analyses and data, subject to existing state data protection and transparency requirements, as well as agreement on the methodologies for joint reviews. This will help ensure that states must have early, meaningful, and substantive input in the development of regulatory policies and environmental reviews that have federalism implications.
Working group participation
The WGA also recommends formation of an advisory committee with representatives from states to monitor implementation of its recommendations and provide additional recommendations.
In a related matter, the WGA notes that CEQ’s Initial List of Actions to Enhance and Modernize the Environmental Review and Authorization Process (September 14, 2017, FR) states that the working group will consist of “representatives of other such federal agencies as CEQ shall deem appropriate.” The WGA letter asks the CEQ to remove this limitation and include representatives from state governments in the working group. “The early inclusion of states in CEQ’s process will create a more effective result, which will better satisfy the intent of the Executive Order,” says the WGA.
The WGA letter is here.