(Not) better environmental planning

Around 1970, the idea of creating an environmental office in the White House was so popular there were two competing Senate bills and one from the Nixon Administration. And the Secretary of Interior was so keen on all things green he wanted his department reorganized and renamed, the "Department of the Environment." One of the biggest things that happened in America's Greenest Year was the adoption of the National Environmental Policy Act.

That law told the federal government to "use all practicable means, to restore and enhance the quality of the human environment and avoid or minimize any possible adverse effects of their actions."

In January, I provided some fast analysis of a number of proposed changes by the Administration in how they implement that law. On final review, we found 19 areas to comment on. There are five major areas where we oppose changes, seven areas we can support (but sometimes only with amendment), and we make another seven recommendations for additional changes.

Our major concerns are these:

• They pretty much propose to do away with a major purpose of the statute -avoiding or minimizing adverse effects. If finalized, there would be nothing left in the regulations that directs agencies to seek a less harmful course of action. Document it? Yes. Avoid it? No. The effect of the language changes are like putting a cook in a kitchen and telling them to call someone if the food is burning -- but not to turn off the burner. 
• The Australian mining industry says it "has a commitment to continuous improvement.... including the assessment of .... cumulative impacts of new projects." The World Bank, Asian Development Bank, South Africa, Canada, and near every other country on the planet has cumulative effects analysis in their environmental reviews. Apparently that's too high of a standard for America: CEQ is proposing to scrap the analysis of cumulative effects. It's difficult to imagine this change ever standing up in court. It would be like saying that we no longer have to look at smoking as a public health risk because one cigarette doesn't kill anybody and we are not going to look at cumulative risks of smoking. It's true that there are real issues with the current approach to cumulative effects analysis. Absolutely, there is a need to examine past practice and make cumulative effects something that is easier for agencies to analyze. We offer some suggestions in our comments.
• Avoiding harm and offsetting the damage that does occur to our environment is common sense and one of the principle reasons Congress passed the law. Guidance to do either avoidance or offsetting goes away in the proposed changes.

There are quite a few things we support in the proposed regulations (although none outweigh the harmful changes described above). These include dozens of small adjustments in language, stronger page limits and thus shorter documents that will help the public understand environmental impact statements, process improvements, and limits that will help critical infrastructure and ecosystem restoration happen faster, including by limiting agencies from asking for completely new studies to be carried out in the middle of a project review.

The biggest missed opportunity we found is that the proposed changes would leave the regulations nearly as blind to technology as when the original regulations were written in the 1970s. Computers didn't exist when these regulations were written and you wouldn't know anything had changed. We offer more than a dozen recommendations to give technology a central role in environmental planning. At its most basic, this is because 'a picture is worth a thousand words' and all agencies need encouragement to use visual, immersive, and interactive presentation as a replacement to text where there are benefits in comprehension to doing so. But the need to embrace new technology goes way beyond that: comments should be stored in machine readable format to make it easier for artificial intelligence tools to help process comments, monitoring and compliance reports should be stored online so that future project proponents or the public can access them, and requirements that content be 'portable' so that different agencies can use analyses from past project reviews.

Miss on climate

It would be a surprise to see this administration use this provision, but we also think that never-interpreted language in the statute deserves new attention. The law calls for the federal government to use "all practicable means...to...approach the maximum attainable recycling of depletable resources." Soil carbon, and stocks of carbon in forests and wetlands is reasonably 'a depletable resource.' A stronger set of NEPA regulations could define depletable resources and explain what it means for a federal agencies to use all reasonable means to maximize the recycling of carbon back into a climate change-relevant form of storage, for example by increasing soil carbon or restoring vegetation and trees. Such regulations could make this kind of offsetting mitigation a requirement for all major federal actions with significant impacts to carbon.

Fourteen more pages of our comments are here.