Welcome to the landscape, your show about America's parks and public lands and the Trump administration's ongoing attacks on them. I'm Erin Weiss with the Center for Western Priorities in Denver. And I'm Kate Graetzinger in Salt Lake City. Today on the show, we're getting nerdy with John Ruppel, public lands professor at the University of Utah and a former member of the White House Council on Environmental Quality, otherwise known as CEQ.
He's gonna walk us through recent changes to how the National Environmental Policy Act or NEPA is being implemented across federal agencies like the Bureau of Land Management and the Forest Service. But before we do that, the news. Well, where do we even start? A complete barrage of news coming out of the White House and Congress since our last episode. So we're gonna highlight a few of the things we're tracking here. First off, president Trump is trying to make
coal great again. Good luck with that. He signed a handful of executive orders aimed at increasing coal production on public lands. Those orders direct the interior department to identify public lands that contain coal and make it easier for companies to mine it. We're gonna have to wait and see exactly how they do that since the free market has already pretty much made it clear they're not interested because coal is just more expensive than renewables and methane for energy.
Next up, the Trump administration has removed protections over half of the national forest system. Agriculture secretary Brooke Rollins issued an emergency order related to wildfire risk that essentially cuts out the environmental review process for logging projects and allows companies free reign over more than 110,000,000 acres of National Forest land.
The justification for more logging, of course, is reducing fire risk, but the memo comes on the heels of an executive order calling on the agriculture department to expand timber production across the country by 25%. And as we've talked about many times on this podcast, you cannot log your way out of the wildfire crisis. The only way through is with more fire, especially prescribed burns and natural low level fire. But the Trump administration is moving backwards there.
Politico obtained a draft order under consideration at the White House that would require wildfire response times of thirty minutes in some areas. That hearkens back to the Forest Service's disastrous 10AM rule dating back to 1935 that created so much of the mess that we're in right now. That aim to put out all wildfires even naturally caused ones by 10AM every morning.
And finally, to wrap us up, oil industry advocate Kathleen Seguema withdrew herself from consideration to run the Bureau of Land Management after a letter she wrote regarding the January sixth insurrection resurfaced on Twitter or x. Sagama, who heads the Western Energy Alliance, wrote the letter to the group's members in 2021 blaming the insurrection on Trump's lies about the election.
Now, of course, she wasn't wrong about that, but she also faced severe ethics concerns due to the fact that she has four years refused to release the list of Western Energy Alliance members and did not disclose the group's members in her conflict of interest disclosures. So Sagam is out, and there's no word yet on who might replace her, but you know that we will update you as soon as we hear something. And I'm gonna keep dead naming Twitter. Elon's gonna have to live with the name it
was assigned at birth. Fair enough. Our guest today is John Ruppel. He's a law professor at the University of Utah and a former member of the White House Council on Environmental Quality under president Biden. Professor Ruppel, thank you very much for joining us today. Thanks, Aaron. Thanks, Kate. It's my pleasure. It's really I'm excited to join you and talk about NEPA and public lands. Alright. So let's start off with the basics because this is gonna turn into an alphabet
soup. First, we have NEPA, the National Environmental Policy Act that was signed into law in 1970. It's one of the bedrock environmental laws. It requires federal agencies to just think about and consider the environmental impacts of their proposed actions through a whole review process that involves a public comment period in science and other stuff. Alright. Now let's move on to CEQ, the council on environmental quality where you worked. What is CEQ, and what does that have to do with NEPA?
Great question. So the National Environmental Policy Act, in addition to kind of setting forth this national charter about environmental policy, and setting up these procedural requirements for agencies to look before they leave. It also set up the council environment of pardon me, the council on environmental quality. So that's housed within the executive office of the president.
And, basically, it has three jobs. One, it's to help the president, develop an understanding of environmental matters. Second, it's to help the president develop environmental policies. And then third, to help them implement those policies and programs, including NEPA. So if we go back to 1970,
we've got the National Environmental Policy Act. The next year, president Nixon signed an executive order, and it directed CEQ to issue guidelines to all of the federal agencies out there about how to comply with with NEPA statutory mandate. The idea is we wanted to create a common floor, a common set of practice across all of these federal agencies. Those guidelines didn't work out quite as well as intended because it wasn't clear to agencies or to courts whether they were intended to be,
advisory or binding in nature. So a couple years later, in 1977, President Carter's in office. He issued another executive order that directed CEQ to promulgate its own regulations. Those regulations, were intended to apply across all of the federal government, and President Carter directed all federal agencies to comply with those. So
it created a mandatory floor. In effect, it created, you know, a uniform floor across all federal agencies, but then those other agencies could adopt their own processes as necessary. Right? You know, you think about the forest service. They're dealing with projects that are very different than, say, the nuclear regulatory commission. So they needed some ability to adapt to their their missions, but they wanted to start from a common floor. So yeah, I mean, it's basic it's it's a
basic structure. It's the foundation. And agencies, courts, developers, everybody, the public, they've been relying on that common floor for the last forty seven years. So on February 25, the CEQ under president Trump issued an interim final rule rescinding its own regulations regarding the implementation of NEPA. First of all, did I explain that correctly? And second of all, what does that mean?
Yeah. That's that's pretty much it, Kate. On his first day in office, president Trump issued an executive order entitled unleashing American energy. Now this was one of a 24 executive orders that he's issued as of today. But this EO, it did something really important. It repealed President Carter's nineteen seventy seven order authorizing CEQ to issue regulations. And it also directed CEQ to repeal
the regulations that are currently in effect. So basically, he forced CEQ to repeal the regulations that have been guiding all four forty one federal agencies as they implement NEPA. Now I wouldn't go so far as to say it torp the rules of the game because NEPA as a statute still applies, but he injected this massive amount of uncertainty
in federal decision making. And kind of the way I think about it is you can think of CEQ's NEPA regulations as something like a traffic signal at a very busy intersection. You can turn off the traffic lights to save electricity, but the traffic laws are still there. They still apply, and now everybody needs to treat that intersection as a four way stop. Yeah. We we save some money along the way, but at a significant cost in terms of efficiency and safety.
So from where I sit, it's a it's not a good trade off. And and as a quick aside, you know, I said there have been a 24 EOs so far from the Trump administration. To put that in context, in the whole four years of the Biden administration, we saw a 62. So in eighty days, we're seeing, you know, a push to catch up with what the Biden administration did in four years. Alright. So how did we get here? I mean, where where does this idea come from that CEQ wouldn't have the authority to issue
NEPA regulations? I mean, this is something that, as you pointed out, was in effect through Carter, Reagan, Bush, Clinton, Bush, Obama, Trump, and Biden, and now all of a sudden, no, you know, forty seven years later, whoopsies? It it's a great question because for a very long time, people have been treating CEQ's regulations as binding. You know, there's a complicated legal path that involves litigation in both Washington DC and North Dakota, but I'll I'll save you all that.
Basically, we had a court decision out of the federal district court in North Dakota in February of this year. And they reasoned that NEPA, as enacted by Congress and signed into law by the president, did not specifically authorize CEQ to issue regulations. And they went on to say, well, it's not clear to us. We don't or the court didn't believe that the president could then delegate authority to CEQ to issue these regulations.
So the court then concluded that absent authority to issue the regulations in the first place, those regulations were without legal force and effect. Now I'm not sure that's the correct legal answer, but it's a binding court decision and the federal government did not appeal it. So that's the rule of the case as we sit here today. The North Dakota court then declared the twenty twenty four versions of the CEQ regulations invalid. So those are the most recent version.
Interestingly enough, the court said, well, those are the only ones that are challenged, so we are going to leave in place the prior CEQ regulations. Even though they were issued under the same authority, on the same statutory base or legal basis, we're gonna leave those in place. And that created some confusion, obviously, understandably.
Anyway, all of that was overshadowed, in later when president Trump issued his executive order, repealing CEQ's authority and directing them to repeal their regulations. So that's all, pretty abstract. Let's bring this down to public lands where the rubber meets the road, at least for where our listeners are concerned. Basically, everything that occurs on federal land, goes through the NEPA process.
What will this change mean for how NEPA is applied by the BLM, for example, or the forest service, to, like, proposed logging, proposed drilling, things like that? That's a it's a really good question, and I think we're still working through that. I think first of all, the way CEQ's regulations were written, they provided the floor and they specifically said other agencies, you can supplement these, but don't don't be redundant. Don't just copy and paste. Add to it.
So all of those other agencies, some of them, I think there's something like 86 that have issued their own regulations thus far. They're gonna have something to fall back on. Whether it's gonna have as much detail in it as the prior CEQ regulations, we'll have to see. Whether those regulations, you know, that are in place from the BLM and the Forest Service and the Corps of Engineers and everybody else are consistent, that's gonna be another question.
The extent to which they incorporate CEQ's prior rules by reference and in doing so, make them part of their their own regulations and and allow them to live on past this repeal, we're gonna have to figure that out as well. So all of those things create confusion. They create uncertainty for
the agency. So to take your example, if you have an oil and gas company that's trying to get permits to drill on, you know, Forest Service or BLM land, they're still gonna have to go through the NEPA process, but the rules are less certain. The potential to have a conflict between, between agencies increases. The time I think agencies are gonna spend on this process will increase because they're gonna have to try and figure out how to move forward in this atmosphere of increased uncertainty.
There's a risk that a risk from the perspective of that permit applicant that the public may be more likely to sue and challenge it because, again, we have questions of what the rules truly are, what they require, what rules apply. So all of those things, I think, are bad. And I bad for the agency that's trying to navigate this process, and they're trying to do it now at a time with fewer staff, fewer resources. So we made their job much, much more difficult.
It's gonna be bad for industry or the I should say, applicants. So this could be, you know, our oil and gas company. Maybe it is a a transmission company that's trying to get, an electric line, crossing over forest service and BLM lands to bring energy to a a local community. Maybe it's, a community that's trying to update or trying to replace a water line that crosses federal
land. This is going to impact a lot of people in ways that I think, really aren't good if we're thinking in terms of efficiency, if we're thinking in terms of environmental stewardship, or we're thinking about just getting a a faster, better decision. Alright. So the short version of this is this is DOGE creating chaos, or the Trump administration creating chaos. Take us then up to the 30,000 foot
level. At at the end of the last congress, we heard some serious talk of NEPA and permitting reform, and maybe there is gonna be something that got passed on a bipartisan basis during lame duck. Do you think this changes the the dynamic in Washington and the possibility that congress might decide to step in if the White House is just creating uncertainty and chaos for the industries that president Trump keeps keeps claiming he's trying to help promote? I think that's one possibility.
I think the short, easy answer here is that I think the president had authority to president Carter had the authority back in 1977 to direct CEQ to issue regulations. I think, President Trump has that authority again today. He can withdraw his order. He can allow CEQ to promulgate rules. We can recreate that common floor. That's the fastest and easiest way forward. I think Congress could step in here and provide some very useful guidance. They could say, look, CEQ,
you have the authority to issue regulations. In fact, we're going to recognize the ones, that you already had in place as of you know, 2024. We're going to take that as a starting point. And if if the administration or others wanna go back and revise those to make them better reflect their policy priorities, fine. But at least we can create,
a shared floor. And I think in some ways, the irony here is if we go back and we look at what Congress has been trying to do, in terms of NEPA and permitting writ large over the last couple of decades, it's been largely focused on efficiency. I think there's been a recognition that we can make permitting, particularly around public lands,
work better. And by better, I mean, we can make it faster, more efficient, less expensive, more predictable without undermining protections for the quality of the air we breathe, the water we drink. We can also make the process work better without disenfranchising communities that are impacted by these decisions and ensuring that the decisions are made in a clear, transparent way. So I think there's room to do better, and that's what congress has been trying to do over the last at least decade.
You know, we had, you know, not to get too far into nerdy, dumb hair, but we have something called Fast 41, which is named after title one of Fixing America's Surface Transportation Act. It was basically this this pilot project that said we're going to take the biggest, most difficult, most thorny projects that require federal authorization. You know, they need to be $200,000,000 or bigger.
And we're going to move those onto a dashboard to make sure that all of the agencies that are involved, whether it's the EPA, the Federal Energy Regulatory Commission, Department of Energy, whoever it is, that they're all working together. They're coordinating and we're moving concurrently rather than sequentially. It was a huge win. It's carving years off of the permitting process. But that's not what the executive order does.
It now fragments at a time when we have been trying to coordinate and make things more efficient to make sure that if you think about the wildlife analysis that has to be done for a large project, you know, we want to make sure that the Forest Services needs are met, that the Fish and Wildlife Services needs are met, that the state wildlife managers, that their need, their analytical needs, whatever they need in order to support their permitting decision,
that's all done at once. We don't need three separate analyses, three separate sets of studies that go to essentially the same question. That's just a bad use of time and resources. So let me make sure I've got this straight. Does Fast 41 go away now? Was that a CEQ creation? Like, does is this basically a step in the opposite direction of efficiency and collaboration? No. I didn't mean to imply that. That that was I was unclear.
FAST 41 is still in place, but I think it's an example of the kind of reforms that we were already seeing to make the permitting process more effective, more efficient without undermining our environmental protection. So I think but I mean, maybe to your point, though, FAST 41 compliance now does become more difficult because you're going through the NEPA process as part of FAST 41. And the rules now are less clear. I think that's gonna cause a problem.
So you, along with a bunch of other law professors, filed a comment to the federal government arguing that this rescission of, the CEQ authority will create issues for permitting, which you sort of just talked about. Another group of law professors filed a comment objecting to CEQ issue issuing this interim final rule change instead of going through a notice and comment process. Can you explain the importance of that? Why is it why would that be a better way to do this?
Wow. You guys really did your homework. This is this is kind of a deep dive. Yes. There are two letters. The one I signed on to, I think there were 28 law professors that expressed concerns about the IFR. There's a separate, separate letter that was written by another group of environmental law professors. And kind of to understand the difference here, we have to talk a little bit about federal rulemaking. Rulemaking is governed by something called the Administrative Procedures Act or the APA.
And most of the time you have a situation where Congress says to an agency, we want you to go out and issue a rule or a regulation of the same. And that rule kind of fills in the blanks, provides details around a particular how to implement a particular law. And most of that rule making goes through what's called a notice and comment process where the public is told about the proposed rule. They're given a chance, to read it, an opportunity to comment.
The agencies then have to read those comments, consider them, respond to them, and change the draft rule as necessary all before they can issue a final rule. So the idea is that, again, we're we're going through a transparent process that is predictable. What happens and now there's an exception to that normal APA process, the notice and comment process, that allows agencies to forego notice and comment if they can show what's called good
cause. And under the APA, there are three reasons for the good cause exemption. One is that the rulemaking would be impracticable. One is that it would be unnecessary. And the third is that rulemaking, you know, that that process would be contrary to the public interest. And here, the interim final rule repealing CEQ's regulations, it relies on that good cause exemption. The other letter goes into great detail about that exemption and explaining why public comments were not impracticable.
There was nothing that made it impossible. They weren't unnecessary and they certainly weren't contrary to the public interest. And if that letter is correct, and I think they make a very, very strong legal argument, then CEQ would need to go back, reissue their repeal rule in a draft form and then follow the notice and comment process. Otherwise, those valid CEQ regulation, to the extent they're valid following a North Dakota decision, would remain in place until that rule making
process is concluded. So that's kind of messy. And the bottom line is we had you had two groups of law professors debating about what was the how to proceed. And we chose to focus on the president's authority to authorize CEQ to issue rules, to focus on the consequences of the repeal, and to focus on why the interim final rule is inconsistent with these broader efforts to make permitting efficient.
You know, it's just a it's a the difference of approach reflects where we chose to focus our limited time and resources, and it doesn't necessarily reflect a disagreement about the law. Many law professors signed both letters. Alright. I'm glad we started talking about the Administrative Procedures Act because, boy, we're about to get wonky with what happened this week. We're taping this on Thursday. Late Wednesday, president Trump signed yet another executive order. It's confusingly
written. It's kinda all over the place. Everyone seems to not be entirely sure even what this will mean because it is so far out there. The very short version is that it appears that he is trying to make a whole bunch of agencies, including interior and EPA, add a one year sunset clause to essentially every existing environmental regulation, on everything from the, the Endangered Species Act, to Migratory Bird Treaty Act, the 1872
Mining Law. It is a very long list just as far as interior is concerned, and it looks like they're trying to make every environmental regulation expire in the next year or so. How out there is this idea? Are there any examples of this kind of sunset thing happening even on a temporary basis, much less across every rule coming out of entire government agencies? Aaron, where to where to begin on this
order? I mean, I guess, first, I wanna go back and say, again, this is the hundred and twenty fourth executive order we've seen in eighty one days or something. We're breathing from the fire hose and still trying to make sense of not just these individual orders, but how they fit together, how they fit under our constitution, how they fit under the laws we have in place. So this is a huge project. And as you say, we're still trying to make sense of what what is a really radical order.
Yes. There are examples of laws that include sunset provisions or regulations that include sunset provisions. You know, after a period of time, maybe three, five years, you know, something goes away. I am I can't see how a president through an executive order could modify multiple existing regulations to insert a sunset provision into those existing rules. That just doesn't work. The Administrative Procedures Act requires a process. It requires transparency
and engagement. I can't see how you would be able to avoid notice and comment rulemaking on these, and that's going to take time. And in doing that, the agencies are going to have to explain why they're making these changes. In here, that's gonna be clear because the president told them to. But Is that enough under the law? Right. Is that a justification? We'll see. And this is a really confusing
order. It talks about, the the purpose of the order applying to regulations governing energy production, but it doesn't define that. What does governing energy production mean? Are we talking about mining for uranium that may or may not be used for power generation? Are we talking about, you know, power plant operation? What what is this? What does it mean? I think those are all really, really difficult questions.
And then if you read further into the order, it talks section five c exempts what they call regulatory permitting regimes authorized by statute. I don't know what that means. My colleagues don't know what that means. And it seems like just about everything they're talking about here in the context of rulemaking and sunset provisions is a regulatory permitting regime. So we're still trying to figure this one
out. It may contradict itself. No one knows anything because these are is it fair to say not the best and brightest in terms of regulatory lawyers who are drafting these things to begin with? I wouldn't go there. There are some very, very bright attorneys working in the federal government. The attorneys in the Department of Justice, the attorney this the career attorneys in the office of White House counsel, those are the best of the best. Their career attorneys are really good.
I wonder personally, and this is, you know, a personal question, is who is in the room who is working on some of these orders? Are those career folks that have that have experience, that have expertise, that understand how the regulatory and permitting system works, Are they in the room? Are they fully engaged? Is their input being being considered? But
that's an open question. I wouldn't I they're very, very smart people, available and I'm sure there's some very, very smart people working on these orders and they may be thinking about them in ways that, that I am not in terms of slightly different objectives or you know, how they will all come together at some later date. So since we're talking big picture about all of these executive orders,
I'm curious. Do you do you see this all as part of a concerted effort to roll back regulation across the federal government? And if so, do you think how far do you think they'll get? I mean, I feel like when we talk about these EOs where it's always like, oh, well, we've got the backstop of the court. Someone will sue. It won't actually go into place. It's actually a press a glorified press release more than anything. Like, these EOs oftentimes don't they're not legally binding. They
don't change the law. But how you know, just given what we've seen over the past month and a half or two months, how far do you think they'll get in terms of deregulating, you know, across the federal government, especially as it relates to public lands? It's a great question. And, it was actually before we we got on this call, I was doing some research in preparation for a a presentation I have to give on Monday.
And I was looking at the amount the number of proposed rules under the, you know, the beginning of the Biden administration versus the beginning of the Trump administration. And it surprised me a little bit because the Trump administration has has issued something like a third, a little more of a third as many draft or proposed rules as the Biden administration. The Biden administration came in and did a lot of rulemaking at the very beginning.
But what I think is different is we're seeing just this tsunami of executive orders, many of which direct agencies to go through rulemaking processes with a very specific deregulatory focus, where I think the Biden administration said, alright, we have this idea of how to make things work a little different, how to make rules work within our priorities and within the structure of law. We're seeing a much more focused direction
from the Trump administration. So I think we're going to see a lot of rulemaking, to come. How that will fare in the courts. It's hard to say. The first Trump administration had a terrible record in terms of getting things through the courts. And I think in some ways it's going
to become more difficult. You know, there's all this talk about the death of Chevron and Loper, bright Kind of the the TLDR there is that before we used to give deference to agencies on a lot of questions that come up in rule making. Now under the Loper Bright decision, agencies have to put forth the best explanation for the rules. So I think the bar got high The bar is higher now for the trump administration than it was before.
And we're gonna see how this this wave of rule making fares as we move forward. A a bit of be careful what you wish for or the the dog that finally caught the car here because it's now the Trump administration that has to deal with the fallout from Loper Bright and these and Chevron decisions. And it should be noted doing all of that with a drastically reduced staff in the justice department. It's not interior department lawyers that go to court, right, for this. It's DOJ.
That that's right. It's DOJ that's gonna be in court, but it's gonna be the Department of Interior and the Department of Agriculture and EPA's lawyers that are helping craft these new rules, that are helping to shepherd them through the process. It's gonna have to go through the Office of Management and Budget. It's gonna have to go through the Office of Federal Register. There's a, there's a process here to make things, make sure that things are clear and transparent and accessible.
And, and we've thrown sand into gears by cutting agency staff and personnel. These agencies were already working at max capacity. People were working their butts off to try and get stuff done. And then you you reduce capacity, you reduce staff, you limit resources, and you put more work on the plate. It's it's just it's not going to give us the intended result, assuming that the result was to get you know, to move through the rulemaking process in a a faster, more predictable way.
Alright. Thank you for this insight and for this road map for what's to come. I realize this has been a wonky episode, but I really appreciate you walking us through what's gonna happen because we're gonna have to follow this closely over the next several years. John Ruppel, law professor at the University of Utah and an alumnus of the White House Council on Environmental Quality. Thank you so much, for your insight today. Thanks, Kate. Thanks, Aaron.
Here's a little good news to close out this episode. A federal judge recently ruled that federal agencies unlawfully froze funds awarded under the bipartisan infrastructure law and the inflation reduction act. The agencies include the agriculture, energy, interior, and housing departments.
In her ruling, the judge who was appointed by Trump stated that agencies do not have unlimited authority to further a president's agenda, nor do they have unfettered power to hamstring statutes passed by Congress, AKA laws. She commanded the agencies to immediately release the funding, which includes payments to nonprofits working on everything from urban forestry to lead pipe remediation. Of course, we will see whether the administration follows that court order. That's gonna come in
future episodes. You You know they're trying to make lead pipes great again. Right along with coal. That's gonna do it for us today, folks. You can always reach us at podcast@westernpriorities. Or don't be shy. We love to hear from you. If you are a journalist and gonna be at the Society of Environmental Journalists Conference next week in Phoenix, please drop us a line. Kate and I
are gonna be hanging out there. And even if you're not gonna be at SEJ, go sign up for our daily newsletter, Look West, if you wanna keep up with the barrage of tax on our public lands. Thanks again to professor Ruppel for joining us today, and thank you for listening to the landscape.