Is Your Local Government a Champion for its Citizens?
rather than providing environmental groups a way to sandbag agency decision-making with lawsuits. For example, the notice of intent to complete an environmental impact statement (EIS) must be much more detailed than required under prior regulations and must also include a request for comments. An by: Karen Budd Falen, extra comment period was also added at the Budd Falen Law Office, LLC end of the process that mandates inclusion of local governments. Another recognition of the importance ne of the greatest dangers to our rural way of life is allowing people on the of local government participation was the coasts (people who often have never revamping of the requirement to write an visited, much less lived in, our communities) EIS’s environmental consequences section make decisions in an ideological “vacuum” to include a discussion of possible conflicts regarding our local natural resources, econ- (consistency review) between the proposed omies, customs and culture, and proper- action and its alternatives with the objectives ty rights. The Trump Administration fully of local governments’ land use plans, policies understood that local governments have the and controls. The NEPA regulations additionally clariexpertise to advocate for our economic, environmental and social well-being because we fied what constitutes a “major federal action elect those officials from our communities significantly affecting the human environand counties. Local governments can and ment.” Following the commands of the U.S. should be a champion for their local citizens. Supreme Court, an environmental impact While federal statutes have long recog- must be “proximately caused” by the pronized that local governments should have posed federal decision. If there is an envia voice in federal decisions impacting their ronmental impact (either positively or negaconstituents through consistency review with tively), economic impacts must be considered. The regulations included a two-year local land use plans, cooperating agency status or coordination, President Trump championed that notion. For example, Trump’s regulatory reform addressed long overdue updates to the regulations implementing the National Environmental Policy Act (NEPA). The intent of NEPA was to create a process for the federal government and the public to consider potential effects of major federal actions on the human environment. However, before the Trump reform, NEPA had been abused by radical groups to advance their agenda often to the detriment of the citizens who live with the impact of these federal decisions. To many, NEPA had become a tool to manipulate the federal government to bow to their whims or face years of lawsuits. In an attempt to de-weaponize NEPA, the Trump regulations clarify that NEPA is not only supposed to analyze the effects that a decision may have on the environment, but also must analyze how it will affect a local community’s economy, customs, and culture. Additionally, the Trump rules gave local governments the ability to participate in the federal decision-making process, not only when state law allows, but also by defining “special expertise” in areas within the local government’s mission or experience. For local governments that are not “home rule,” this change gives you a voice. The updated regulations mandate greater up-front participation in NEPA’s process
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time period to complete an EIS. NEPA is a process-not a substantive mandate. The public and agency decision makers should understand the environmental and economic impacts of decisions and make informed choices within this two-year timeframe. NEPA was not enacted by Congress to simply create reams of paper with no end in sight. Now, the Biden Administration seeks to revise the Trump NEPA rules. Although Biden cannot just simply undo these changes with the stroke of a pen, the current rhetoric is concerning. So called “fly-over country” can’t afford to go back to NEPA documents that take 5 or 10 years to complete and never consider local impacts. We don’t know when these Biden changes will be proposed, but we will have the ability to analyze and combat them if necessary. In the meantime, local governments have the regulatory authority to be involved in decisions that impact our rural way of life. Are your local governments ready and willing to take on this responsibility?
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2021 Fall Marketing Edition
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