No, Congress should not expand the use of categorical exclusions

In a recent op-ed, Thomas Hochman and Lars Erik Schönander of the Foundation for American Innovation championed the expansion of categorical exclusions (CEs) under the National Environmental Protection Act (NEPA). While their arguments for streamlining infrastructure deployment, particularly for geothermal energy, are well-intentioned, they miss a fundamental point: NEPA exists to ensure that we, as a nation, make informed decisions that prioritize the health and sustainability of our environment.

The Council for Environmental Quality (CEQ), responsible for guiding the implementation of NEPA, recently issued new proposed rules for NEPA review, including actions qualifying for a categorical exclusion. The Farmed Animal Advocacy Clinic at Vermont Law and Graduate School, where I serve as the director, submitted comments on behalf of our client, the Center for Biological Diversity, to the CEQ highlighting rampant CE abuses across numerous agencies.

A glaring example of such misuse is the blanket categorical exclusion of entire sub-agencies. The Food Safety Inspection Service (FSIS), a sub-agency of the US Department of Agriculture overseeing the production and slaughter of animals for food at licensed facilities in the U.S., is one such entity. Slaughterhouses, by their very nature, have profound impacts on the human environment. Over time, FSIS has eased restrictions on slaughterhouse line speeds, leading to an increase in the number of animals slaughtered daily. This uptick not only boosts the number of animals raised on farms but also amplifies the processing that ensues. The repercussions are manifold: deteriorating air and water quality, heightened noise pollution, an escalated risk of zoonotic diseases, and increased nuisance issues, especially in environmental justice communities. Yet, FSIS has sidestepped addressing any of these environmental impacts due to its overreaching categorical exclusion.

Returning to the broader issue, CEs were introduced to acknowledge that not all governmental actions pose significant environmental risks. However, the potential for misuse is evident, as seen with FSIS. Without stringent oversight and regular updates, CEs have become overbroad, outdated, and a convenient loophole for bypassing essential environmental reviews.

It’s alarming to note that an estimated 95 percent of all NEPA analyses are CEs. This statistic underscores the fact that the majority of governmental actions under NEPA are not undergoing the rigorous scrutiny they might warrant. Expanding the use of CEs, as Hochman and Schönander suggest, would only exacerbate this issue.

The authors point to the disparity in permitting times between geothermal projects and oil and gas projects as a justification for expanding CEs. Using oil and gas CEs as a benchmark, as the authors do, is concerning. Oil and gas development projects should not be categorically excluded — these CEs further exemplify CE misuse. While geothermal energy may offer promising environmental benefits, the solution isn’t to reduce oversight but to refine the process. Streamlining doesn’t have to mean sidelining environmental considerations.

Moreover, the comparison between geothermal and oil and gas projects is not entirely apples-to-apples. The environmental impacts, risks, and considerations for these energy sources are distinct. Granting geothermal projects the same problematic categorical exclusions as oil and gas projects, without a thorough review of the potential consequences, is a hasty move.

It’s commendable that there’s bipartisan interest in reforming the permitting process for geothermal projects. But the answer isn’t a blanket expansion of CEs. Instead, Congress should continue letting the CEQ provide guidance to agencies with expertise so that they can focus on tailoring the NEPA process for geothermal projects, ensuring that environmental considerations are balanced with the need for innovation and development.

In conclusion, while the push for faster infrastructure deployment is understandable, it shouldn’t come at the expense of our environment. NEPA’s rigorous review process exists for a reason — to protect our planet for future generations. Expanding the use of categorical exclusions without careful consideration risks undermining this noble goal. Let’s prioritize informed decision-making over expedience.

Laura Fox is Director of Farmed Animal Advocacy Clinic at Vermont Law and Graduate School.