Climate Change, Environmental Justice and Engagement in the Regulatory Spotlight

 

NEPA provides a broad framework for environmental protection, requiring federal agencies to assess the environmental impacts of projects with a federal nexus prior to issuing permits. As such, NEPA’s scope and strength are relevant to both permit applicants and the communities whose lives are shaped by the quality of the environment in which they live.

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Under the Biden administration, the Council on Environmental Quality (CEQ) has proposed two rounds of NEPA revisions. The Phase 1 Rule was finalized in April 2022. Pertaining largely to the scope of environmental reviews, it restored the requirement to assess proposed projects’ cumulative and indirect impacts. The Phase 1 rule also laid important groundwork for subsequent reforms to the design and designation of alternatives to permit-seeking projects.

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On July 31, 2023, CEQ issued proposed Phase 2 revisions; this latest set of changes would be extensive. Among the changes, Phase 2 would strengthen NEPA’s environmental protection mandate, integrate climate change and environmental justice goals within that mandate, and amplify the role of public engagement in environmental reviews. CEQ has made a red-line copy of the proposed rule publicly available.

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Strengthened Environmental Protection Mandate

While the Phase 1 Rule broadened the objectives considered in designing alternative approaches to permit-seeking projects, the Phase 2 proposal would require Environmental Impact Statements (EIS) to identify the “environmentally preferable alternative” among the alternatives considered. This required designation would be a first. Implementation of this change would add summary-level clarity to the environmental value of potential courses of action, as well as transparency and explicitness to permitting decisions’ coherence with environmental protection. Additionally, revised introductory language of the rule points to NEPA’s existing “action-forcing” procedural provisions to ensure agencies’ implementation  in both letter and spirit.

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Integrating and Prioritizing Climate Change and Environmental Justice Objectives

The proposed Phase 2 rule includes substantial new language related to consideration of climate change and environmental justice independently and as linked issues, and frames each as a national environmental policy priority. Reducing effects of climate change and addressing the disproportionate and adverse effects on communities with environmental concerns are highlighted as features to consider in designing alternative actions. These objectives are additionally provided as considerations in identifying the newly required environmentally preferable alternative. Agencies are directed to consider the climate change effects of proposed actions in their reviews, including their intersection with environmental justice and with the heightened vulnerability of communities with environmental justice concerns.

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Similarly, the proposed Phase 2 rule would require analysis of potential effects on communities with environmental justice concerns, and meaningful engagement with those communities as part of environmental reviews. Phase 2 text defines environmental justice as “the just treatment and meaningful involvement of all people, regardless of income, race, color, national origin, Tribal affiliation, or disability, in agency decision making and other Federal activities that affect human health and the environment so that people:

1. Are fully protected from disproportionate and adverse human health and environmental effects (including risks) and hazards, including those related to climate change, the cumulative impacts of environmental and other burdens, and the legacy of racism or other structural or systemic barriers; and

2. Have equitable access to a healthy, sustainable, and resilient environment in which to live, play, work, learn, grow, worship, and engage in cultural and subsistence practices.

 

The reference to “full protection” included in Phase 2 mirrors language in the Biden Administration’s April 2023 Executive Order – and in the absence of explicit definition, leaves room for interpretation.

 

Amplified Public Engagement

The public’s role in environmental reviews is also amplified in proposed Phase 2. Existing references to “public involvement” are replaced with “public engagement”, with emphasis on the need to disclose environmental information early, in advance of decision making or action. Further, “public scrutiny” is cited as essential to NEPA implementation, alongside accurate scientific analysis and expert agency comments. Translating increased engagement requirements into action, the proposal requires each federal agency to have a Public Engagement Officer charged with coordinating and facilitating public engagement in environmental reviews.

 

While not an exhaustive list of details, the revisions highlighted above collectively signal intent to strengthen NEPA’s environmental protection mandate, increase the role of the public in environmental reviews, and reflect increased focus on environmental priorities including reducing climate change effects and addressing environmental justice. And while this proposal is not final, the confluence of these issues and consequences of not fully demonstrating their consideration are already playing out in the application of state environmental regulations.

 

Just days ahead of CEQ’s issuance of proposed Phase 2, Massachusetts Energy and Environmental Affairs Secretary Rebecca Tepper directed utility Eversource to revisit the environmental impact report for the capital project known as the Western Massachusetts Gas Reliability Project. The Secretary’s decision cited the need for deeper analysis of the project’s impact on state climate goals, the need for more research into available alternatives, and the absence of meaningful engagement with the public, including those living in communities with environmental justice concerns. The timing and nature of this decision and the release of CEQ’s proposal should renew our focus on managing these key issues for more defensible environmental analyses, and for the sake of continued development, shared progress and assured well-being.

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Understory has more than 20 years of experience in social sustainability, including engagement, building social license building, and  environmental justice. Reach out for a conversation about how we can support your success.