Letter

Dear Mr. Boling,

The National Association of State Departments of Agriculture (NASDA) appreciates the opportunity to submit the following comments to the Council on Environmental Quality (CEQ) concerning CEQ’s proposed updates to the regulations implementing the procedural provisions of the National Environmental Policy Act (NEPA). NASDA fully supports the administration’s goal to “modernize and clarify the CEQ regulations to facilitate more efficient, effective, and timely NEPA reviews.” NEPA implementation has evolved significantly over the last four decades, yet the CEQ regulations have not undergone a substantial update in that time.

Efficient, effective, and timely NEPA reviews are critical for state departments of agriculture and the producers they represent. Major federal actions that are subject to the NEPA compliance process have a direct impact on the lives of rural residents across the nation. For example, cattle and sheep grazing on federal lands supports many family-based ranch operations and remains vital to the culture, customs and economies of many regions. In addition, farmers and ranchers depend on the development of reliable infrastructure to deliver their products, expand their operations, and share in the benefits of the latest technology. The NEPA process must continue to serve as an effective mechanism for assessing environmental impacts, without jeopardizing job creation, economic growth, and the quality of life in rural communities.

CEQ’s proposed regulations make substantial improvements across a range of areas, including renewing focus on major environmental issues; adding consideration of technical and economic factors where appropriate; enshrining the role of state governments in the NEPA process; and taking steps to ease the administrative burden of NEPA across the federal government. The following comments highlight these areas of improvement and examine the positive impacts of CEQ’s proposed updates.

  • About NASDA
  • NASDA Support for CEQ’s Updates to NEPA Procedural Changes
  • The Impact of Litigation Must Be Addressed to Fully Transform the NEPA Process
  • Conclusion

NASDA represents the Commissioners, Secretaries, and Directors of the state departments of agriculture in all fifty states and four U.S. territories. State departments of agriculture are responsible for a wide range of programs including food safety, combating the spread of disease, resource conservation, and fostering the economic vitality of our rural communities.

NASDA members are co-regulators with the federal government on a host of natural resource programs and a key partner in land management. Many NASDA members, especially in the western U.S., manage natural resource programs; are full NEPA cooperating agencies; and work to promote rangeland health and management. Individual state departments of agriculture are commenting on the rule as well, and we encourage CEQ to carefully consider their comments.

NASDA appreciates CEQ’s thorough review and proposed update of the NEPA implementing regulations. Comments below highlight the three major areas where NASDA sees improvement over existing regulations.

First, NASDA appreciates the renewed focus on major environmental issues and appropriate consideration of technical and economic factors in NEPA analysis. CEQ’s proposed updates reflect NEPA’s original intent of supporting informed, transparent consideration of environmental impacts. NEPA was not designed to unnecessarily delay or halt projects with adverse impacts; rather, the goal was to ensure that federal agencies conducted an informed analysis and provided opportunities for public review and input.

CEQ’s proposed revisions make clear that NEPA analyses must include relevant information that truly contributes to informed decision making.[1] Superfluous information does not enhance the quality of analysis or support public understanding of the environmental impacts. In addition, CEQ directs agencies to avoid making Environmental Impact Statements (EIS) encyclopedic[2] and clarifies that only “reasonable” alternatives need be addressed.[3]

The emphasis on reasonable alternatives is a common-sense update that ensures federal agencies will spend precious time and resources considering alternatives that are practical, not merely theoretical. Indeed, throughout the proposed rule CEQ’s use of the word “practicable” as opposed to “possible” underscores the commitment to ensuring that alternatives are realistic from a technical and economic perspective. Similarly, CEQ’s intention to treat “minor, non-substantive errors” as harmless emphasizes that critiques of NEPA analysis should be directed at true flaws in the deliberation, not trivial matters.[4]

NASDA also supports the addition of “economic and technical” considerations throughout NEPA regulations.[5] As outlined above, the prosperity of rural communities and businesses often depend on federal actions. Federal agencies should therefore be encouraged to consider the economic costs and benefits as part of their NEPA review.

Second, the CEQ updates place appropriate emphasis on the federal government’s obligation to consult with co-regulatory partners, like state governments, and other stakeholders. NASDA members work side-by-side with federal agencies to implement a wide range of environmental laws. Continuing to invest in a strong state-federal partnership is critical for effective implementation of NEPA.

In addition, the CEQ updates ensure that interested stakeholders are given an opportunity to provide input early in the NEPA process. As a result, federal agencies will possess a more complete picture of environmental impacts and concerns from the beginning stages of a NEPA review. Furthermore, early input enables federal agencies to adequately address the full breadth of relevant, reasonable feedback in the final decision. Specific directives within CEQ’s proposed updates include a requirement that federal agencies consult early with state partners[6] and a requirement that agencies solicit input at the start of a NEPA review process (i.e., when a notice of intent is published).[7]

Third, CEQ’s proposed updates have the potential to reduce the administrative burden of the NEPA process and improve the consistency of NEPA implementation across the federal government. State departments of agriculture are keenly aware of the considerable time the NEPA review process often takes and have seen first-hand how federal agencies take competing approaches to implementing NEPA. One needs to look no further than the divergence between the NEPA handbooks employed by the Bureau of Land Management and U.S. Forest Service to understand the divergence.

NASDA recognizes that some degree of variation is inevitable, owing to different agency operating realities and structures. However, striving toward increased standardization and efficiency would help facilitate a better working relationship with states and other stakeholders involved in the NEPA process. NASDA believes CEQ’s proposed language strikes the right balance between encouraging standardization while maintaining flexibility for operational realities.[8]

The more prominent role given to categorical exclusions (CEs) is another aspect of CEQ’s proposed updates that will help reduce administrative burden. CEs allow for more efficient and effective NEPA compliance reviews for routine agency activities. NASDA supports moving CEs to the top of the list of actions federal agencies can take to reduce paperwork and delay.[9] While some have criticized the use of CEs, the proposed regulations take steps to ensure that CEs are still reviewed when appropriate.[10] Overall, CEs are a valuable tool for making sensible decisions and protecting the time and resources of federal agencies.

Finally, CEQ’s proposed regulations include several provisions designed to make the NEPA process more concise and efficient, without sacrificing quality and depth of analysis. These provisions include instituting page limits and time limits that apply to environmental assessments and environmental impact statements; allowing for joint preparation of documents by lead and cooperating agencies, where appropriate; allowing federal agencies to use environmental assessment documents and materials prepared by state agencies; and requiring the lead NEPA review agency to develop a schedule with clear milestones for conducting NEPA reviews. Taken together, these changes will help expedite NEPA review processes.

CEQ’s propose updates to NEPA’s implementing regulations make important strides toward improving the NEPA process. However, state departments of agriculture remain concerned about the impacts of excessive litigation on agency behavior related to NEPA implementation. While addressing challenges related to NEPA litigation fall outside the scope of CEQ’s proposed regulations, it is worth noting that even the positive changes proposed by CEQ will mostly likely continue to be subject to litigation that delays agency action. In practice, the constant threat of litigation modifies agency behavior and can lead to reluctance on the part of federal agency staff to finalize a NEPA review. NASDA will continue to support efforts that help protect agricultural producers from onerous and excessive litigation.

Thank you for the opportunity to comment on proposed updates to the regulations implementing the procedural provisions of NEPA. NASDA applauds CEQ’s efforts to deliver a comprehensive update to the NEPA regulations. We look forward to working together to ensure the NEPA process continues to serve as a valuable environmental assessment tool, while also ensuring that agricultural producers and rural communities are given the opportunity to benefit from major federal actions. If you have any questions, please reach out to Max Moncaster, NASDA’s Associate Director of Public Policy, at max.moncaster@nasda.org.

Sincerely,

Barbara P. Glenn, Ph.D.

Chief Executive Officer

[1] See § 1500.1.

[2] See § 1502.2.

[3] See § 1502.16.

[4] See § 1500.3(d)

[5] For example, see § 1504.2, 1502.16(a)(10).

[6] 1501.2b4ii: consult early with state, tribal, and local government

[7] Section 1500.3 (b)1; 1501.9

[8] For example, Section 1500.3(a) (emphasis added): “Agency NEPA procedures to implement these regulations shall not impose additional procedures or requirements beyond those set forth in these regulations, except as otherwise provided by law or for agency efficiency.”

[9] See Sections 1500.4 and 1500.5.

[10] Section 1501.4 states: “If an agency determines that a proposed action is covered by a categorical exclusion identified in its agency NEPA procedures, the agency shall evaluate the action for extraordinary circumstances in which a normally excluded action may have a significant effect.”

Date Sent:

March 10, 2020

Sender:

NASDA CEO Barb Glenn

Recipient:

Edward A. Boling, Associate Director for the National Environmental Policy Act, Council on Environmental Quality

Subject:

Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act

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