SETAC Members React to Executive Order 14154 on Removal of NEPA Implementing Regulations
Glenn Suter. U.S. Environmental Protection Agency (retired), and Mark Johnson, U.S. Defense Centers for Public Health (retired)
On February 25, 2025, the Federal Register issued a notice to remove the National Environmental Policy Act (NEPA) implementing regulations. The notice has a comment period that ends on 27 March 2025.
We have reviewed relevant material and are providing comments on the Removal of NEPA implementing regulations. In addition, because that document is from a mandate in Executive Order (E.O.) 14154 and will be implemented based on the 19 February Memorandum for Heads of Federal Departments and Agencies, we are commenting on those documents as well. The three documents together indicate the issues raised by the proposed removal action.
The Removal of NEPA Implementing Regulations Consistent with E.O. 14154
We do not contest the finding that the Council on Environmental Quality (CEQ) does not currently have the authority to impose regulatory requirements on other agencies. However, we do not believe that removing the CEQ regulations and giving agencies the authority to regulate their own NEPA compliance is the best option. Particularly in this time of shrinking agency staffs, placing that additional responsibility on all agencies is inefficient, at best. They are unlikely to have staff to spare with expertise and experience in environmental impact assessment to write regulations while continuing to assess their own actions. This interim final rule is also likely to create confusion in the industries that propose projects to federal agencies. It will also require new training for the industry staffs and consultants who must adapt to the new procedures and definitions. We believe that the most efficient course would be for Congress to simply amend NEPA to empower CEQ to write regulations.
If the CEQ does not choose to adopt that solution, then it will be important to provide strong guidance to the agencies. As the interim final rule acknowledges, NEPA requires that agencies consult with CEQ when developing methods and procedures. Also, E.O. 14154 directs the Chairman of CEQ to convene a working group to coordinate the revision of agency-level NEPA implementing regulations for consistency. In the interest of consistency, efficiency and scientific rigor, we recommend that the working group should be a standing committee that goes beyond the initial procedural guidance to develop structured assessment frameworks and guidelines for information generation, inferences and analyses. Guides could be developed for specific types of actions, such as dam construction and removal, prescribed burning programs, highway construction, and emissions to air and water. Such CEQ products could improve the quality of assessments and aid agencies in reaching deadlines. CEQ could draw on expertise from both within and outside the federal government, possibly including professional societies like SETAC.
The interim final rule is a response to E.O. 14154, and it states that CEQ will comply with the E.O.; however, we believe that some overcompliance will contradict the goal of science-based and useful assessments as required by NEPA. In particular, we believe that the prohibition of environmental justice is based on a misapprehension that it implies favoritism to certain racial or ethnic groups. In fact, it is based on the well-established fact that some communities have been more impacted by polluting and disruptive projects, and new projects should not contribute to those disproportionate effects. The politization of the term environmental justice should not prevent those common-sense considerations in NEPA assessments.
E.O. 14154 negates several programs to reduce the rate of climate change or mitigate its effects. That should not prevent NEPA assessments from including the positive or negative impacts of federal projects on climate change. Increasing temperatures due to air pollutants clearly falls within the definition of an environmental impact as described in NEPA.
The opposition to assessing social costs of greenhouse gasses, carbon, methane and nitrous oxide is apparently a political attack on the scientific assessment of climate change. This directive must not be taken as excluding the estimation of social costs of federal actions in NEPA assessments. The costs of all environmental impacts are social costs. Society, not developers who pollute or otherwise damage the environment, bear the costs of breathing the air, drinking the water, viewing strip-mined mountains, etc. It has been claimed that social costs of carbon, etc. are not legitimate because they are not direct causes of the floods, fires, hurricanes, disease, etc. However, many hazardous agents indirectly inflict social costs. For example, nitrogen oxides are regulated under the Clean Air Act even though their costs to human, animal and plant health are indirect due to their role in creation of ozone and peroxyacetyl nitrate.[MJ1] [GS2] We are aware of no objections to assessing social costs of nitrogen oxides.
The 19 February Memorandum for Heads of Federal Departments and Agencies on Implementation of the National Environmental Policy Act as a Result of E.O. 14154 raises the following concerns:
The agencies are told to prioritize project-sponsor prepared environmental documents; however, the agencies should be aware of the inherent bias of project sponsors as well as the biases of environmental and health advocacy organizations who oppose the project. When the agency does not have the in-house expertise to judge the reliability of the science, they should consider engaging outside experts.
The discussion of effects is ambiguous. Reasonably foreseeable effects may or may not be cumulative. NEPA may not mention cumulative effects, but clearly, the NEPA requirement to identify reasonably foreseeable effects implies inclusion of cumulative effects that are reasonably foreseeable.
The statement that “NEPA documents should not include an environmental justice analysis” should not preclude consideration of the cumulative effects of a project on an environmentally impaired community.
When developing and applying categorical exclusions, it is important to ensure that the category members are uniformly innocuous. Remember that the Deepwater Horizon drilling rig that failed catastrophically causing human deaths and extensive environmental damage was permitted under a categorical exclusion.
In summary, we can all agree that regulations can be streamlined and made less burdensome, but this directive is likely to have consequences that the authors have not considered or scientifically vetted. It is likely that inconsistent processes will have an adverse effect on innovation, the economy and health. SETAC professionals remain positioned and committed to assist the Administration in a reasonable path forward.
You can submit comments online.
Contact: Glenn Suter, [email protected]