PEER submitted comments yesterday opposing the Commission on Environmental Quality (CEQ)’s proposal to fillet our nation’s foundational environmental law, the National Environmental Policy Act (NEPA). NEPA requires that every agency of the federal government consider environmental consequences before any action or decision which might have a significant effect on the environment. The proposed amendment to CEQ’s regulations implementing the law, which date back to 1979, would allow agencies to ignore any information outside of a predefined scope, ignore the impacts of climate change, and consider private economic gain on the same level as public environmental harms.
NEPA, passed in 1969, was the first major environmental statute of the modern era, preceding the Clean Air, Clean Water, Resource Recovery and Conservation, and Superfund Acts. It requires that every federal agency consider environmental consequences in addition to economic and technical concerns before deciding on a course of action. The CEQ’s new interpretation does the opposite: it sidelines real environmental considerations, puts blinders on the agency’s decisionmaking, and reduces the depth of analysis on environmental concerns to a fifth grade reading level. CEQ wants to redefine “doing the bare minimum” as the most agencies are even allowed to do, and it’s lowering the bar for the bare minimum at the same time. To my knowledge, this is the first time an agency has ever argued so strongly in favor of its own irrelevance. The following is excerpted from PEER’s comments filed on the CEQ docket for their new rulemaking. We also signed on to an omnibus comment filed by dozens of like-minded persons and organizations which we borrowed some research and language from, which you can see here. The comment period has closed, but any interested supporters should take the time to have a look at the overwhelming level of public opposition to CEQ’s actions and, if you really want to burn an hour of your life, look at how bad the proposed rule really is.
The introduction and summary of our comments follows:
The proposed rules intentionally undermine the nation’s foundational environmental statute and the policy it advanced: that the federal government should “to the fullest extent possible” elevate environmental considerations to the same level as technical and economic factors which have historically dominated agency decisionmaking. This proposal is par for an era of compulsory abdication of duty to uphold the law to appease the whimsy of a President who is hostile to the notion of government, scientific fact, and informed decisionmaking. It reflects an ethos of uninformed knee-jerk deregulation that has proven fatal for an overwhelming majority of similar deregulatory efforts.
The CEQ has also determined that all prior guidance documents, regardless of the degree to which they substantively conflict with the proposed rule, shall be voided.3 This means that the current Administration priorities the only thing that matters, and 50 years of combined government experience, expertise, and perspective is being unilaterally culled. The CEQ has made no effort to explain how the purging of this administrative precedent will do anything but add to confusion about how to implement NEPA, as the agencies undergoing NEPA processes will no longer be able to rely on the practices and expertise they have familiarized themselves with for five decades.
Despite its professed interest in reducing paperwork and wasted time, the proposal in its current state is so lacking in reasoned justification and legal basis that it will only waste the time of the agency, the commenters who have participated in the rulemaking process, and the litigants who will inevitably be challenging it in court. To avoid this consequence we urge the CEQ to withdraw the proposal and reissue a new notice of proposed rulemaking keeping the few positive elements of the proposal and reconsidering the many transparent efforts to shield the government from any unpleasant knowledge about the environmental consequences of its actions.
The instant NPRM is not a rulemaking document that is meant to invite honest comment through the rulemaking process. CEQ has gone out of its way to minimize public comment, holding only two information sessions with limited seating, refusing to respond to a request to extend its comment period until six days before the end of the 60 day period, and providing few if any explanations for its actions. CEQ has little apparent concern for whether the assertions it is making about the statute and caselaw are true or false, and has no evidenced intention of defending them all in good faith. If it did then the agency would have spent the last 18 months preparing more than a sentence fragment of legal justification, if that, to defend each of the seismic changes to the NEPA regulations that it has offered. By providing only a token effort towards its duty to justify why the agency has made the incomprehensible decisions that it has, it forces the inevitable overwhelming response of commenters to issue dozens of pages of responses which have to speculate as to the agency’s actual reasoning for the changes put forward. The disproportionately detailed response that the CEQ’s proposal necessitates is a modern example of a principle described by Johnathan Swift:
Falsehood flies, and truth comes limping after it, so that when men come to be undeceived, it is too late; the jest is over, and the tale hath had its effect: like a man, who hath thought of a good repartee when the discourse is changed, or the company parted; or like a physician, who hath found out an infallible medicine, after the patient is dead.
The CEQ’s “hazy effort to communicate a stand or position that doesn’t have the stamina of the truth” is seemingly designed to take advantage of the asymmetric responsibilities placed on agencies and the public by the Administrative Procedure Act’s (“APA”) rulemaking process. CEQ has issued its proposed rules with dozens upon dozens of identified legal, factual, and even simple grammatical errors, each of which must be responded to in an order of magnitude more detail than CEQ has provided in the first instance. In formal debate theory this is known as the “Gish gallop,” a technique used during debating that focuses on overwhelming an opponent with as many arguments as possible, without regard for accuracy or strength of the arguments. The term was named after the creationist Duane Gish, who used the technique frequently against proponents of evolution. The technique wastes an opponent’s time and may cast doubt on the opponent’s debating ability for an audience unfamiliar with the technique, especially if no independent fact-checking is involved or if the audience has limited knowledge of the topics.
Of course, in this instance, a judge will ultimately serve as an impartial fact checker of sorts, but only as to the process followed by CEQ in reaching the rule it ultimately promulgates, and it will require an immense expenditure of time and energy by the courts and litigants to finally disprove every assertion made by CEQ in promulgating this rule.
The obvious conclusion is that the proposed rule is procedurally insincere and designed to attract just the kind of outrage it has garnered in the public. The CEQ should withdraw this NPRM and follow rulemaking procedures in good faith to resolve the few legitimate procedural issues identified in the proposal.
If you enjoyed this portion, we encourage you to read the full comments submitted by PEER as well as the other organizations who are fighting back against the Trump Administration!