Will local governments defend citizens against Biden’s weaponization of NEPA rules?

Opinion Editorial- Is Your Local Government a Champion for its Citizens?

By: Karen Budd Falen

Press Release: Budd Falen Law Office, LLC

One of the greatest dangers to our rural way of life is allowing people on the coasts (people who often have never visited, much less lived in, our communities) make decisions in an ideological “vacuum” regarding our local natural resources, economies, customs and culture, and property rights.  The Trump Administration fully understood that local governments have the expertise to advocate for our economic, environmental and social well-being because we elect those officials from our communities and counties.  Local governments can and should be a champion for their local citizens.

While federal statutes have long recognized that local governments should have a voice in federal decisions impacting their constituents through consistency review with local land use plans, cooperating agency status or coordination, President Trump championed that notion.  For example, Trump’s regulatory reform addressed long overdue updates to the regulations implementing the National Environmental Policy Act (NEPA). The intent of NEPA was to create a process for the federal government and the public to consider potential effects of major federal actions on the human environment.  However, before the Trump reform, NEPA had been abused by radical groups to advance their agenda often to the detriment of the citizens who live with the impact of these federal decisions.  To many, NEPA had become a tool to manipulate the federal government to bow to their whims or face years of lawsuits.

In an attempt to de-weaponize NEPA, the Trump regulations clarify that NEPA is not only supposed to analyze the effects that a decision may have on the environment, but also must analyze how it will affect a local community’s economy, customs, and culture.  Additionally, the Trump rules gave local governments the ability to participate in the federal decision-making process, not only when state law allows, but also by defining “special expertise” in areas within the local government’s mission or experience.  For local governments that are not “home rule,” this change gives you a voice.

The updated regulations mandate greater up-front participation in NEPA’s process rather than providing environmental groups a way to sandbag agency decision-making with lawsuits. For example, the notice of intent to complete an environmental impact statement (EIS) must be much more detailed than required under prior regulations and must also include a request for comments.  An extra comment period was also added at the end of the process that mandates inclusion of local governments.  Another recognition of the importance of local government participation was the revamping of the requirement to write an EIS’s environmental consequences section to include a discussion of possible conflicts (consistency review) between the proposed action and its alternatives with the objectives of local governments’ land use plans, policies and controls.

The NEPA regulations additionally clarified what constitutes a “major federal action significantly affecting the human environment.”  Following the commands of the U.S. Supreme Court, an environmental impact must be “proximately caused” by the proposed federal decision.  If there is an environmental impact (either positively or negatively), economic impacts must be considered.

The regulations included a two-year time period to complete an EIS.  NEPA is a process-not a substantive mandate.  The public and agency decision makers should understand the environmental and economic impacts of decisions and make informed choices within this two-year timeframe.  NEPA was not enacted by Congress to simply create reams of paper with no end in sight.

Now, the Biden Administration seeks to revise the Trump NEPA rules.  Although Biden cannot just simply undo these changes with the stroke of a pen, the current rhetoric is concerning.  So called “fly-over country” can’t afford to go back to NEPA documents that take 5 or 10 years to complete and never consider local impacts.  We don’t know when these Biden changes will be proposed, but we will have the ability to analyze and combat them if necessary.  In the meantime, local governments have the regulatory authority to be involved in decisions that impact our rural way of life.  Are your local governments ready and willing to take on this responsibility?

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