The White House’s Council on Environmental Quality (CEQ), an agency within the Executive Office of the President, has finalized its comprehensive overhaul of the National Environmental Policy Act (NEPA)-implementing regulations. NEPA requires Federal agencies to consider the environmental impacts of proposed actions as part of agencies' decision-making processes.
According to the CEQ, the changes in its Final Rule, titled “Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act,” are intended to address identified deficiencies in the NEPA process, which “continues to slow or prevent the development of important infrastructure and other projects that require Federal permits or approvals.”
National Environmental Policy Act and Implementing Regulations
The National Environmental Policy Act sets forth procedural requirements, applying that national policy to proposals for major Federal actions significantly affecting the quality of the human environment by requiring Federal agencies to prepare a detailed statement on: (1) the environmental impact of the proposed action; (2) any adverse effects that cannot be avoided; (3) alternatives to the proposed action; (4) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity; and (5) any irreversible and irretrievable commitments of resources that would be involved in the proposed action. NEPA does not include a private right of action and specifies no remedies. Rather, challenges to agency action alleging non-compliance with NEPA procedures are brought under the Administrative Procedure Act (APA).
In 1978, CEQ promulgated its Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act (NEPA regulations), which tell federal agencies what they must do to comply with the procedures and achieve the goals of NEPA. The regulations direct Federal agencies to adopt their own implementing procedures to supplement the NEPA regulations. The NEPA regulations have not been significantly amended in more than four decades. In support of its amendments, CEQ maintains that implementation of NEPA has become increasingly complex and time consuming for federal agencies, project applicants, and those seeking permits or approvals from the Federal government. According to the CEQ, the average length of an environmental impact statement (EIS) is over 600 pages, and that the average time for Federal agencies to conduct these NEPA reviews is four and a half years.
In 2017, President Donald Trump issued Executive Order 13807, which established a two-year goal for completing environmental reviews for major infrastructure projects and directed CEQ to consider revisions to modernize its regulations. In 2018, CEQ issued an Advance Notice of Proposed Rulemaking (ANPRM) requesting comment on potential updates to its regulations. On January 10, 2020, CEQ issued a Notice of Proposed Rulemaking (NPRM) to modernize and clarify the NEPA regulations. It produced more than 1.1 million public comments.
Amended NEPA Implementing Regulations
On July 15, 2020, the CEQ announced its final rule. The amended regulation revises or establishes numerous provisions within several general areas:
Management of the NEPA Process
- Establishes presumptive time limits of two years for the preparation of environmental impact statements (EISs) and one year for the preparation of environmental assessments (EAs)
- Specifies presumptive page limits for EISs and EAs
- Requires joint schedules, a single EIS, and a single record of decision (ROD), where appropriate, for EISs involving multiple Federal agencies
- Strengthens the role of the lead agency and requires senior agency officials to oversee NEPA compliance, including timely resolution of disputes to avoid delays
- Allows applicants/contractors to assume a greater role in preparing EISs with appropriate disclosure of financial or other interests and with supervision and independent evaluation by the agency
Codification of Relevant Case Law
- Includes new provisions to assist Federal agencies in determining whether NEPA applies and the appropriate level of environmental review
- Requires agencies to consider environmental effects that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action
- Clarifies the definition of major Federal action and excludes activities with minimal Federal funding or involvement such as small business and farm loan guarantees
- Directs agencies to analyze a reasonable range and number of technically and economically feasible alternatives
- Provides efficiencies to comply with NEPA where procedures and documents required under other statutes satisfy the requirements of the CEQ regulations
- Allows agencies to establish procedures to use other agencies’ categorical exclusions (CEs) and to adopt EAs and CE determinations, where appropriate
- Requires agencies to provide more information to and solicit input from the public earlier in the process to ensure and facilitate informed decision making by Federal agencies
- Reduces duplication by facilitating use of documents prepared by State, Tribal, and local agencies to comply with NEPA
- Enhances ability of Native Americans to participate in the NEPA process and ensures appropriate consultation with affected Tribal governments and agencies
- Eliminates provisions in the prior regulations that limit Tribal interest to reservations
- Requires agencies to consider the affected environment, including reasonably foreseeable environmental trends and planned actions
- Requires agencies to certify consideration of alternatives, information, and analyses submitted by State, Tribal, and local governments and public commenters
- Clarifies that mitigation must have a nexus to effects of the proposed action or alternatives
The rule is scheduled to take effect on September 14, 2020. However, much like other sweeping amendments to environmental regulations, the new NEPA regulations will likely be subject to legal challenges. So while the changes aim to streamline the environmental review process, in the near term, they will create uncertainty and legal risk developers involved in projects that are subject to NEPA.
If you have questions, please contact us
If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.