New CEQ Guidance on Efficiency in NEPA Review Unlikely to Thin the Forest of Paperwork

You've got to feel a bit sorry for the Council on Environmental Quality (CEQ). Created by the National Environmental Policy Act not as an independent agency, but rather as an office within the Executive Office of the President, CEQ is charged with overseeing environmental protection efforts within the executive branch. Without any statutory enforcement powers, CEQ relies on a sort of moral authority – and the acknowledged expertise of its National Environmental Policy Act (NEPA) lawyers – in weighing in on environmental policy, NEPA reviews, and controversial projects.

In the Obama presidency, CEQ has taken on the project of improving both the efficiency and the effectiveness of NEPA. Given CEQ's historic unwillingness to tamper with the admirably clear and concise NEPA regulations, the office has instead issued a series of guidance documents. The latest on improving the timeliness and efficiency of NEPA reviews, was published on March 6th.

Certainly, no one would describe the current state of NEPA review as timely or efficient. It can take years to complete an Environmental Impact Statement (EIS), and the ensuing litigation can delay projects for years. The resulting documents and studies can run to more than a thousand pages. Yet, in practice, these voluminous studies are often completed far too late in the process to affect an agency's decision to go ahead with the proposed project.

Unfortunately, the new guidance will do little to help. It seems unlikely that agencies need CEQ's permission to incorporate other studies by reference or to touch only briefly on unimportant impacts (both techniques suggested for reducing the length of the process and the resulting documents). The guidance offers no useful suggestions to agencies on how to make NEPA review actually relevant to decision making, simply reminding agencies of their obligation to start the process early enough to compare the results. In short, the guidance offers nothing new to project proponents and its suggestions are both so nebulous and obvious that it is difficult to imagine any agency NEPA officer changing his or her behavior as a result.

CEQ's recent efforts to put some teeth into NEPA and to rein in delays are laudable. Unfortunately, the latest guidance is unlikely to advance this long-overdue goal.