Noem rejects federal council on environmental quality rule changes

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Sep. 26—WASHINGTON — Before a new highway, airport or other publicly-owned facility is built, the federal government is required to make sure that project is built in harmony with the natural environment where it would be located.

The National Environmental Policy Act is a process where federal agencies evaluate the environmental impact of the project, give the public an opportunity to comment on those evaluations, and then offer the agency suggestions for how to build with the health of the environment in mind.

But proposed rule changes that would allow those agencies more discretion in determining the environmental impacts of such projects are coming under fire by state leaders, including South Dakota Gov. Kristi Noem.

"The stated purpose for the Proposed Rule is to increase the efficiency and effectiveness of the NEPA process. It fails in both regards," Noem and the 16 other governors wrote to CEQ chair Brenda Mallory. "Instead, the Proposed Rule eliminates the clarity of the existing rule, decreases NEPA's efficiency, and drastically increases the potential for litigation related to NEPA decisions."

It has been three years since the last update to NEPA, and the governors argue that implementing these changes so soon after the last update "creates significant confusion and decreases the certainty associated with CEQ's regulations."

The National Environmental Policy Act requires federal agencies to make assessments on how their proposed actions would impact the environment. The CEQ oversees that assessment process, and makes recommendations, or enforces regulations, to those agencies to make sure they are complying with NEPA. So if a federal agency is trying to determine whether to grant a permit application, or is considering adopting federal land management actions, or constructing a publicly-owned facility or highway, they must abide by all the rules in NEPA.

The last environmental impact statement submitted to the CEQ for a project in South Dakota was part of the 2021 proposal to host the B-21 Main Operating Base 1 at Ellsworth Air Force Base.

The CEQ is proposing allowing agencies to use their own discretion when determining whether an issue has been "exhausted" during the public comment period, and suggests allowing agencies to determine whether to consider those issues themselves.

The governors said allowing for agencies to determine concerns for themselves under "unusual circumstances" where there was limited public comment would lead to inefficiency and confusion in the NEPA process.

Currently, the South Dakota Environmental Policy Act, the state-level equivalent to NEPA, does not mandate a public hearing, or the specific length of time to hold for a comment period, on a state agency's environmental impact statement.

The Department of Environment and Natural Resources, which oversees environmental impact assessments on the state level, can accept a NEPA document in place of the state level document, both of which require the impact statement to include information about the proposed action's irreversible commitments to resources, and environmental, social and historical impacts on the surrounding area.

"[T]he 2020 Rule increased the efficiency and effectiveness of the NEPA process," the governors wrote. "The examples provided herein demonstrate that the Proposed Rule undermines the progress made in the 2020 Rule by decreasing certainty and efficiency in the NEPA process, increasing the potential for litigation, and minimizing the role of state government."

Governors included in the letter include:

Joe Lombardo, Nevada

Spencer Cox, Utah

Kay Ivey, Alabama

Brian Kemp, Georgia

Brad Little, Idaho

Eric Holcomb, Indiana

Kim Reynolds, Iowa

Tate Reeves, Mississippi

Mike Parson, Missouri

Greg Gianforte, Montana

Jim Pillen, Nebraska

Chris Sununu, New Hampshire

Doug Burgum, North Dakota

Kevin Stitt, Oklahoma

Kristi Noem, South Dakota

Greg Abbott, Texas

Mark Gordon, Wyoming