Photo Credit: Jack Atkinson

August 31, 2023

Skiers and Climbers Applaud Biden Administration for Restoring NEPA

On July 28, 2023, the Council on Environmental Quality (CEQ) released its Phase 2 Proposed Rule for implementing the National Environmental Policy Act (NEPA). Finalizing this Rule is the final step in a multi-phase process to restore NEPA after the Trump Administration attempted to gut the law in 2020 by rewriting the implementing regulations (Rule) so as to allow government agencies to cut corners, ignore climate change, and put industry in the driver’s seat when writing environmental reviews. We sued to stop the 2020 Rule and appreciate that restoring NEPA has been a top priority for the current administration. This new Proposed Rule also incorporates updates to comply with the changes Congress recently made to NEPA in the Fiscal Responsibility Act of 2023.

What’s the Background?

NEPA is the nation’s most important environmental law. It is an empowering legal tool that allows communities in the United States to defend themselves against harmful government and industry actions. NEPA ensures that the federal government makes the best decision based on the best information while engaging and informing the public it serves.

In 2020, the Trump Administration tried to gut NEPA by rewriting the Rule that guides its implementation, Winter Wildlands and the American Alpine Club joined 18 other conservation and social justice organizations to take the Administration to court.

In April 2022, the Biden Administration completed a Phase 1 NEPA Rule, restoring the basic environmental safeguards intended by NEPA. This proposed Phase 2 Rule, the Bipartisan Permitting Reform Implementation Rule, completes the reversal of the 2020 rollback and further strengthens and modernizes NEPA by ensuring environmental reviews are efficient and timely without shortchanging the environment or public engagement.

The Proposed Rule seeks to streamline NEPA while staying true to the law’s purpose of environmental protection and transparency. It incorporates the deadlines, page limits, and categorical exclusion provisions prescribed in the Financial Responsibility Act (which we don’t love) but balances these elements with strong environmental justice requirements and clear guidance on incorporating climate change and other direct, indirect, and cumulative impacts, utilizing best available science, and limits on how categorical exclusions can be applied. 

“Updating the NEPA Rule to meet the challenges of our time while staying true to NEPA’s fundamental goals of environmental and resource protection is no easy task and we’re impressed with what CEQ has produced.”
-Hilary Eisen, Winter Wildlands Alliance Policy Director

Environmental Justice Provisions

This new proposed Rule marks the first time that CEQ explicitly mentions environmental justice as an issue that government agencies must consider in environmental reviews. The Proposed Rule mandates that agencies pursue meaningful engagement with communities of color, low-income communities, indigenous communities, and Tribal communities early and throughout the NEPA process and consider alternatives that reduce adverse health and environmental effects that would disproportionately affect these communities.

The Proposed Rule also includes “potential disproportionate and adverse effects on communities with environmental justice concerns” in the list of extraordinary circumstances. Extraordinary circumstances are important because they place sideboards around the use of Categorical Exclusions (CEs), potentially precluding an agency from using an otherwise approved CE.

Environmental Safeguards

The Proposed Rule places a much greater emphasis on Section 101 of NEPA than any previous Rules have done. This is important because Section 101 is all about protecting the environment. You may have heard us, or others, say something along the lines of “NEPA doesn’t require agencies to make the most environmentally friendly decision, just an informed decision”, and that was how the law had been interpreted by CEQ for a very long time. But by clearly articulating that the entire purpose of NEPA is and always has been to protect the environment, CEQ is emphasizing in this Proposed Rule that NEPA isn’t just about checking boxes, following procedures and giving the environment a cursory nod. Instead, in this Proposed Rule, CEQ is telling agencies that the purpose of the NEPA process is to help them make decisions that are based on an understanding of environmental consequences, and take actions that protect, restore, and enhance the environment. This represents a major shift, for the better, in how NEPA is interpreted and will be applied.  

The Proposed Rule also marks the first time that CEQ mentions climate change in the NEPA regulations, elevating climate change and impacts stemming from or related to climate change as serious issues that must be addressed in environmental reviews. As the overarching environmental issue of our time, it’s hard to see how an agency could analyze the potential environmental effects of a project without considering climate change but considering the 2020 Rule sought to do away with consideration of any cumulative or indirect impacts, language that was intended to prohibit agencies from considering climate effects, it’s a big deal that climate change is front and center in this Proposed Rule. 

“Understanding and addressing climate change is critical to protecting human health and the environment, and in particular sensitive mountain environments. We are happy to see the CEQ Phase 2 Proposed Rule for NEPA identify climate change as a needed consideration in the environmental review process.”

-Byron Harvison, Policy Director at the American Alpine Club.  

Our organizations are pleased to see the Biden Administration fulfilling its promises to restore NEPA and ensure that impacted communities, and the climate, are fully considered in environmental reviews. 

Take Action by September 29, 2023

CEQ is accepting comments on the proposed Phase 2 Rule through September 29. The public is also invited to attend any of the four virtual public meetings that will occur during the comment period. For more information on public meetings, and to review the full text of the Proposed Rule, visit CEQ’s NEPA website: ceq.doe.gov/laws-regulations/regulations.html

6/8/2023

WWA Summary: While we’re glad we have averted a global financial disaster, Congress and the White House used the debt ceiling bill to rewrite NEPA under the guise of “permitting reform” (even though these changes are not limited to permitting decisions). What can you do? Become a member of our Alliance to support our on-going fight to protect NEPA.

Last week, President Biden signed the Fiscal Responsibility Act – otherwise known as the “debt ceiling bill” into law. After a great deal of uncertainty, Congress and the White House have averted global financial disaster and raised the debt ceiling so the US Government can pay its bills, even if it took an unnecessary game of brinksmanship to get us here. (You’ve probably heard that the deal was a win-win for President Biden and Speaker McCarthy. Slow clap for them.)

Unfortunately, the National Environmental Policy Act (NEPA) was one of the deep sacrifices made in order to get a bipartisan agreement on the debt ceiling. And it’s a sacrifice that is very likely to have grave consequences in the world of public lands.

For reasons completely unrelated to the national debt, the Fiscal Responsibility Act includes a section misleadingly labeled “Permitting Reform” that puts into law many of the Trump-era NEPA provisions we have been fighting since 2020. But, unlike the Trump NEPA Rule, which reinterpreted how to apply NEPA without actually changing the law, Congress has now re-written NEPA to weaken its ability to be used as a tool to protect the environment.

Immediate Red Flags

Division C, Title III of the Fiscal Responsibility Act amends NEPA in several ways. Despite being labeled as “permitting reform”, these changes are not limited to permitting decisions. Here are the changes:

• Redefining a “major federal action” and thus limiting the types of projects and actions that trigger NEPA review. Only “major federal actions” are subject to NEPA. The bill changes this definition from “actions with effects that may be major and which are potentially subject to Federal control and responsibility” to “an action that the agency carrying out such action determines is subject to substantial Federal control and responsibility.”

• Allowing Categorical Exclusions (CEs) to be used for projects that may cause significant cumulative effects. The potential for significant cumulative effects used to be a hard stop for CEs but eliminating this safeguard will allow many more projects to skirt in-depth environmental review.
  • Expands the use of CEs by allowing agencies to adopt CEs developed by other agencies. Each agency has a different mission and responsibilities, and a determination of what projects are appropriate for a CE varies by agency. For example, allowing the Forest Service to utilize a CE developed by the Federal Energy Regulatory Commission will have environmental consequences that were not envisioned when the CE was approved within the original agency.

• Allows project applicants (industry) to write their own environmental reviews despite the clear potential for conflicts of interest.

• Sets arbitrary deadlines and page limits for environmental reviews. 
  • An Environmental Impact Statement (EIS) must now be completed in two years, and not exceed 150 pages (or 300 pages if the project is “extraordinarily complex). 
  • Environmental Assessments (EAs) must be completed in one year for environmental assessments and will now be limited to a single 75-page document. 
  • Page limits do not include appendices, so it’s likely that lots of information will now be presented in appendices instead of in the main document, which may make it more difficult for casual readers to understand an EA or EIS. 
  • The time limits would be less concerning if Congress were to adequately fund the agencies that conduct NEPA reviews so that they had the capacity to conduct proper reviews within these deadlines, but they do not. In order to meet these new limits it’s likely that agencies will limit opportunities for public comment and engagement. For example, we often request that agencies allow additional time in a comment period or host additional public meetings and these requests are often granted. This will likely no longer be the case.

• Allows project developers to sue the agency if environmental review deadlines are not met.

• Requires agencies to report to Congress if they miss deadlines for completing an environmental review. This will add additional paperwork and reporting requirements and further constrain agencies’ capacity to get their work done, effectively slowing down permitting or other processes.  

• Mandates the designation of a lead federal agency that has the authority to establish deadlines for other agencies to complete any federal permits or approvals required for a project. For example, when a company holds an oil or gas lease on Forest Service land, the BLM and Forest Service work together on the NEPA to analyze a drilling proposal. Now, one agency (likey the BLM) will essentially be the boss of the other (the Forest Service) for these types of projects.

• Eliminates the requirement to identify irreversible and irretrievable commitments of state, tribal or local resources involved in a proposed action. Now, agencies only have to identify federal resources that are affected. 
  • This ignores NEPA’s broad focus on assuring all Americans a safe and healthful environment, regardless of jurisdiction. 
  • It also further exacerbates an issue we already see with the Forest Service “siloing” projects and trying to ignore how their decisions (like approving a ski area expansion) affect neighboring private lands or other non-federal resources.

The Fiscal Responsibility Act also mandates approval of the Mountain Valley Pipeline in Appalachia. The pipeline approval has gotten more press than the NEPA rollbacks, and it’s a bad deal, but the NEPA rollbacks will also have wide-ranging consequences for the climate, public lands and our environment.

What’s the Background?

These NEPA changes have their (most recent) roots in the House Republicans’ BUILDER Act, which we wrote about in March. Representative Garret Graves (R-LA), who sponsored the BUILDER Act pushed the bill as an “aggressive starting point” for negotiations with Senate Democrats and this approach worked. Fast forward to the past week, and essentially in exchange for not making drastic cuts to the federal budget, President Biden and other Democrat negotiators agreed to change key elements of NEPA, drastically undermining the law’s original intent. It’s a seriously bummer deal for the things we care about.

Are We Happy With Anything? (Spoiler Alert: Meh.)

We are glad Congress and White House were raised the debt ceiling before the government went into default, and that the debt ceiling bill doesn’t drastically cut the Forest Service or other agencies’ budgets (which was included in the bill passed by House Republicans in early May), but there’s absolutely no reason we as a country needed to choose between either defaulting on our debts and causing a global economic meltdown; or slashing funding the agencies that steward our public lands; or upholding the most important, foundational, environmental law in the canon. 

In fact, while the Congressional Budget Office estimates that the bill would reduce federal spending by $1.5 trillion over the next decade, Reuters noted that these “savings” are actually about half of the $3 trillion in deficit reduction the President previously proposed. In short, if Congress truly wanted to reduce the deficit there’s no need to defund our public lands (or other aspects of the government) to accomplish this and NEPA certainly didn’t need to be part of the equation. 

Not to mention the fact that it’s absurd to tie these discussions to the train track of the federal debt ceiling in the first place. 

What’s Next?

The Fiscal Responsibility Act is now law and we’ll soon see how the changes made to NEPA will affect our work to protect wild snowscapes. We’ll also have to wait and see how these changes affect the Council on Environmental Quality’s ongoing work to finish unwinding the Trump NEPA Rule and publish updated NEPA regulations aimed at meeting environmental, climate, and environmental justice objectives, improving opportunities for public involvement, and promoting better agency decision making. 

It’s likely that CEQ will have to start over on this Rulemaking, or make major changes to what they’ve been working on, since the law the Rule is based on has significantly changed. And, with only 2 years left in President Biden’s current term, it’s unclear if CEQ has time to complete a Phase 2 Rule at all. 

After very little change in the fundamentals of NEPA for 50 years, 2020 marked the start of a period of major tumult for this bedrock environmental law. The ground is still shaking and the future isn’t entirely clear, but we’re committed to using every tool available to us to protect America’s wild snowscapes and we’ll keep you informed and engaged as we do so. 

Photo by Rob McCormack in Williams Lake Basin, New Mexico

May 9, 2023

Winter Wildlands Summary: Carson National Forest is asking for public comments on its analysis of Taos Ski Valley Inc.’s proposal to build a gondola and other resort infrastructure. Because this is one of the least substantive Environmental Assessments we have ever reviewed, it strikes us as a good opportunity to bring attention to why the National Environmental Policy Act (NEPA) matters. Plus, this comment period is an important opportunity to protect public access to the Wheeler Peak Wilderness and water quality in the Rio Hondo Watershed. Comments are due May 22, 2023 – we share below our concerns in detail as well as how to comment at the end.

Setting the NEPA Stage

Immediate Red Flags

The fact that the Carson National Forest decided an Environmental Assessment (EA)—rather than a more robust Environmental Impact Statement (EIS)—was a sufficient level of analysis was our first red flag.

Then we realized the Forest Service had only considered one alternative in its analysis: TSVI’s Proposed Action. With only one alternative, the EA does not analyze the impacts of the proposed projects because it does not compare the Proposed Action to anything else. The EA didn’t even analyze a “no action alternative,” much less any alternatives that considered suggestions raised by the public during the initial scoping comment period in 2022. Clocking in at a mere 59 pages, the EA is more focused on describing TSVI’s desired projects than on seriously considering the impacts of those projects or how TSVIs goals might be achieved through other means. 

As with almost all NEPA analyses for ski area projects on Forest Service lands, this EA was written by a third party contractor selected and paid by TSVI. This same contractor also produced the resort’s 2021 Master Development Plan (MDP), which—thanks to Forest Service policy that really needs to be updated—was accepted by the Forest Service with no public input or environmental review. 

In 2022, TSVI requested permission from the Carson National Forest to implement some of the projects in the MDP, at which point the Forest Service issued a scoping notice and solicited public input as required by NEPA. Although over 300 people and organizations submitted scoping comments in 2022, those comments that didn’t conform to the stated purpose and need of the project—objectives identified by TSVI in their MDP—were brushed aside as “alternative[s] considered but not carried forward for detailed analysis”. This, in turn, led the Forest Service to consider TSVI’s Proposed Action as the only alternative in the EA.

With only one option, it’s easy to guess what the final decision will be. That is, unless we can rally enough public comment to push the Forest Service to conduct the level of environmental review that this project merits: that is, an Environmental Impact Statement with a full range of different alternatives.

The Forest Service is accepting comments on the EA until May 22, 2023, directly via their online form. Custom and informed comments make a great impact. We have included key points below for you to use. If you need help during this process, please feel free to reach out to us at info@winterwildlands.org.

In your comments, we encourage you to make the following key points:

1. This project must be analyzed with an Environmental Impact Statement that includes alternatives to the Proposed Action based on input received from public comments. The range of alternatives should include alternatives without the base-to-base gondola and without the water tank and booster station.
2. The water rights assumption in the EA is incorrect. The EIS should consider Taos Ski Valley’s proposals in light of the resort’s actual water rights of 21.45 acre-feet, which is limited to 0.11 acre-feet of daily use allowed between April 11th and October 25th. The EIS should analyze an alternative that places TSVI’s potential water usage in context of the resort’s allocated water rights. 
3. The EA fails to disclose impacts to public lands access. The EIS must consider how the gondola will affect public access to the Williams Lake trailhead. This analysis must include consideration of winter access. 
4. Given the likely negative impacts to Wilderness access the Forest Service should deny the base-to-base gondola.
5. The Forest Service should hold off on considering the 5 million gallon water tank, booster station, and new restaurant until the Village of Taos Ski Valley’s water infrastructure is stabilized.