Dear section members:

We all received Kathleen Rest's summary of the proposed rule's erosion of environmental protection.

I scanned the proposed rule on changes to the Council on Environmental Quality's guidance to federal agencies on environmental assessment of federal projects and will highlight some parts relevant to environmental health to help with your commenting. Much of this proposed rule is purely bureaucratic such as shifting a paragraph from one section to another without change but hidden in a mass of these innocuous rewrites are changes that would subvert the entire intent of NEPA and erase much of the history of the regulations' evolution.

Bases for this proposed rule are Executive Orders 13807 and 13891. These are not long documents and I recommend we all scan them. The President wants the whole process of environmental impact assessment both streamlined and weakened in order to usher in an era of big construction projects, especially carbon-dependent energy projects. The sections referred to below are those of the proposed new CEQ guidance document on environmental assessment by federal agencies.

In section 1508 "Definitions" at the very end of the proposed new Guidance, "effects should not be considered significant if they are remote in time, geographically remote, or the product of a lengthy causal chain."

This narrow definition rules out climate change effects, interstate pollution effects, and lengthy processes such as generation of widespread antibiotic resistance via microbial cassette exchanges. It could also disallow consideration of cumulative effects that build over decades. "Remote" is undefined and could be subject to agency bias.Discharges to the Mississippi River from its origin in Minnesota down to its delta end up in the drinking water of many Louisiana towns and cities. Air emissions in the Midwest end up in the lungs of East Coast dwellers. Minimizing remote impacts is one reason for a federal environmental system. This new narrowing takes this responsibility away from agencies.

Issue #2. Finding of no significant effect relies on mitigation.

In section 1501.6, even if a project is found to have significant effect, it can be labeled as having no significant effect if there is a mitigation plan and mitigation monitoring. Mitigation may or may not work in any particular circumstance. If the devices are not reliably maintained and repaired, the significant effect will be realized.

If an agency decides that a project has no significant effect, no full impact statement is required. Thus, between issues #1 and #2, the number of projects requiring full impact assessment and statement is greatly whittled down to the detriment of public health and the environment.

Section 1501.10 limits the time to produce an EA to one year and an EIS to two years.

In the contexts of climate change, major social trends that affect underlying public health such as growing income inequality, and growing new knowledge about such problems as massive plastic pollution, these time limits do not reflect the work needed to understand the environmental impacts of a large and complicated project.

Although a senior agency official may allow a set lengthening of the time, agencies will be under great pressure to keep to the time limits. Indeed, near its end, the guidance document describes a scoring system that includes consideration of keeping to the time limits and a system of punishment of agencies that don't score well.

These time limits come straight from Executive Order 13891.

Section 1502.7 limits A normal EIS to 150 pages and a complicated one to 300 pages, not including the appendices. The senior agency official may allow a longer EIS in the case of an especially complex one. A large project will need assessment for a number of issues from air and water quality to generation of traffic, human population change of the local area, shifts in the ecosystem, and land use suitability.

One way that the CEQ wants to limit pages is to include information and analyses by reference. This would put a great burden on the reader to look up myriad references to gauge whether the data and analyses are valid and appropriate for the project. Another way to limit pages according to CEQ is to put loads of information and analyses in the appendices. Thus, crucial information may get buried, much the way the crucial definition of "significant effect" was buried at the end of the guidance document.

Many EISs have to present scenarios of possible future events and processes in order to judge whether the proposed project would have future environmental impacts should present circumstances change. The language in these instances is "reasonably foreseeable". Section 1508 (definitions) limits "reasonably foreseeable" to the judgment of " a person of ordinary prudence". 

This definition strikes at the heart of the role of science in environmental impact assessment. Even we scientists sometimes underestimate severity and rapidity of processes such as climate change. Yet we have a much better probability of predicting likely changes in circumstances that could turn the proposed project into one with unacceptable environmental impacts than "a person of ordinary prudence".

The proposed Guidance substitutes important words. In section 1500.1,  "possible" becomes "practicable" in the proposed document. Instead of "all possible means and measures to foster general welfare, ...", it becomes "all practicable means and measures..." Practicable in this document is heavily weighted by economic considerations, so that the economic overwhelms the environmental and NEPA is subverted. The economic has become so overwhelming in this proposed Guidance that the cost of the EIS is required to be put on the cover page!

Sections 1501.1 and 1501.3 ("Threshold applicability analysis" and "Appropriate level of NEPA Review") invite classifying projects as not needing an EIS.In the first, an agency is left to decide whether an action is major or not or is non-discretionary and therefor not up for environmental consideration. In the second, actions can be excluded if normally they have no significant effects; if significant effects are unlikely or unknown, then only an environmental assessment is issued and not a full EIS. Without appropriate criteria for any of these decisions, these sections give large leeway for abuse of process and subversion of NEPA.

Throughout the document, agencies are pressed to use existing data and analyses and existing EIS's from similar projects. This efficiency may or may not be scientifically appropriate. There are no criteria for such adoption. There is no recognition that the state of the art develops so that an EIS of a decade ago is obsolete in its methodology and cannot provide the best assessment. The agencies are ordered not to generate new data and analyses. The Guidance document does not state whether agencies may ask sponsors of private projects to generate site-specific data and analyses. The sense of the document is not to have any new specific data and analyses.

Issue #7. The last one in this list and possibly the most important: the Guidance document states that the only responsibility of an agency is to produce the EIS and inform the public about it.

The summary at the front of the Fed. Register posting on page 1693 and the rewriting of section 1500.1 assert that federal agencies need only consider environmental impacts and not come to any particular conclusion. It removes the reference to "action-forcing" provisions. In other words, the agency could produce an EIS without a conclusion. Section 1505.3 discusses implementing the decision and says nothing about saying no to a damaging project. If a project is found environmentally "unsatisfactory" by one agency in a multi-agency effort, the agencies involved must refer it to the CEQ to resolve the issue and get a consensus (section 1504). There is nothing in the Guidance about stopping a damaging project or imposing a non-damaging alternative.

I apologize for such a long message, but the topic is serious for environmental health professionals and the proposed Guidance document threatens public health and our science. I omitted many items of interest and focused only on the Big Ones. Please consider submitting comments. The deadline is March 10, 2020. The comment portal is https://www.regulations.gov which will give you directions. You need the agency name (Council on Environmental Quality) and the docket number (CEQ-2019-003).

Thanks for your indulgence,

Deborah Wallace

Furthermore, on page 1694, we learn that NEPA violation in and of itself is not the basis for injunctive relief or a finding of irreparable harm. "A showing of irreparable harm in a NEPA case does not entitle a litigant to an injunction or stay."