USDA has proposed sweeping cuts in how it implements a law requiring public participation in its environmental actions. And the public can comment on it.
On July 3, USDA published a proposed interim final rule in the Federal Register that will change how the agency implements the National Environmental Policy Act. The move will drastically cut NEPA regulations from USDA processes.
Very generally, the proposed changes alter how and when USDA and its agencies can conduct environmental assessments, when environmental impact statements must be issued, and how they can be dealt with. These include extensive rescinding of NEPA regulations from USDA agency actions and making several USDA agencies mostly to entirely exempt from NEPA regulations.
The public can submit comments on the move via the Federal Register or Regulations.gov through July 30.
What’s behind these NEPA changes
NEPA is one of the oldest comprehensive environmental regulations in the U.S., signed into law Jan. 1, 1970. It requires federal entities to evaluate the environmental impacts of proposed actions, document their findings and make them available for public comment.
But the requirements have long been criticized for leading to endless litigation.
“USDA is updating and modernizing NEPA so projects critical to the health of our forests and prosperity of rural America are not stymied and delayed for years,” says U.S. Secretary of Agriculture Brooke Rollins in a June 30 news release ahead of the proposed interim final rule being published. She characterizes NEPA as an overly burdensome regulation. USDA describes its proposed changes as “resulting in a 66% reduction in regulations.”
USDA isn’t the only department making such moves, however. The Department of Transportation, Department of Energy, Department of Defense, and many others announced similar proposals. The different departments used similar language, describing the changes as “cutting red tape” and likely to minimize time-consuming litigation over agency projects.
Earthjustice, an environmental law firm frequently involved in NEPA-related lawsuits, characterizes the moves as cutting the public out of the federal decision-making process, however.
“NEPA — the People’s Environmental Law — plays a vital role in ensuring that government decisions are transparent, well-informed and accountable to the public,” says Andre Segura, Earthjustice vice president of litigation.
The government-wide moves to change how NEPA is implemented in federal departments are the result of several recent legislative and regulatory changes:
- The Fiscal Responsibility Act of 2023, in part, amended how NEPA should be implemented.
- President Donald Trump’s Unleashing American Energy executive order directed the Council on Environmental Quality to provide guidance on how departments and agencies should implement some parts of NEPA and rescind others.
- On Feb. 19, the CEQ issued a guidance memorandum directing federal agencies to revise their NEPA implementing procedures “to expedite permitting approvals” and to be consistent with the Fiscal Responsibility Act of 2023.
USDA change details
USDA’s proposed changes include the agency-wide removal of several sections of NEPA (40 CFR parts 1500 through 1508). These sections deal with definitions, purpose and scope, compliance details, dispute resolution processes and decision-making processes among other topics.
These sections also include removal of some public comment elements. For example, Part 1503 outlines that draft environmental impact statements be made available to the public and appropriate stakeholders for comment. The proposed changes would alter this requirement, noting: “…a request for comment may be undertaken at any time that is reasonable in the process of preparing an EIS, as the publication of a draft EIS is no longer required.”
The changes also note that obtaining and addressing comments must not extend the new EIS deadlines outlined in the Fiscal Responsibility Act of 2023.
The proposed changes also remove various NEPA regulations from specific USDA agencies. Some agencies, such as the Agriculture Research Service, are being made exempt from NEPA regulations entirely with minor exceptions.
Examples of change topics of note from USDA’s proposed changes:
- Applicability of NEPA: “NEPA does not apply to “non-Federal actions”; therefore, under the terms of the statute, NEPA does not apply to actions with no or minimal federal funding, or with no or minimal federal involvement where a federal agency cannot control the outcome of the proposal.”
- Scope of significance in environmental effects: “When defining considerations for significance, USDA is using the concept of “affected environment” and a list of types of effects that include both short- and long-term effects, both beneficial and adverse effects, effects on public health and safety, economic effects, and effects on the quality of life of the American people.”
- Notice-and-comment procedures are not required: “…although USDA is voluntarily providing notice and an opportunity to comment on this interim final rule, it has determined that notice-and-comment procedures prior to issuance are not required [for agency NEPA reviews].”
