How CEQ’s Proposed Overhaul of NEPA Regulations May Impact NJ Developers

How CEQ’s Proposed Overhaul of NEPA Regulations May Impact NJ Developers

The White House’s Council on Environmental Quality (CEQ) is seeking to overhaul its 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. Meanwhile, CEQ is an agency within the Executive Office of the President tasked with administering Federal agency implementation of NEPA.

In its Notice of Proposed Rulemaking, CEQ maintains that changes are needed to “facilitate more efficient, effective, and timely NEPA reviews by Federal agencies in connection with proposals for agency action.” CEQ has not comprehensively updated its regulations since their promulgation in 1978, and, according to CEQ, 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. It found that the average length of an environmental impact statement is over 600 pages and that the average time for Federal agencies to complete such NEPA reviews is four and a half years.

“CEQ is proposing practical changes to modernize environmental reviews and make the process more predictable and efficient. The proposed rule would ensure Federal agencies consider the significant environmental impacts of proposed projects and activities while accelerating the process so that timely decisions are made on major infrastructure and other projects affecting Americans’ everyday lives. Americans deserve a government that is efficient, effective, and responsive,” CEQ Chairman Mary B. Neumayr said in a press statement.

National Environmental Policy Act

Congress enacted NEPA to establish a national policy for the environment. NEPA establishes 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 noncompliance 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.

CEQ Notice of Proposed Rulemaking

In 2017, President Donald Trump issued Executive Order 13807 establishing a One Federal Decision policy. It 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. It used the comments its received to inform its proposed rule. As detailed by CEQ, some of its proposed revisions to the NEPA Regulations include:

Modernize, Simplify and Accelerate the NEPA Process

• Establish presumptive time limits of two years for completion of environmental impact statements (EISs) and one year for completion of environmental assessments (EAs)
• Specify presumptive page limits
• Require joint schedules, a single EIS, and a single record of decision (ROD), where appropriate, for EISs involving multiple agencies
• Strengthen the role of the lead agency and require senior agency officials to timely resolve disputes to avoid delays
• Promote use of modern technologies for information sharing and public outreach

Clarify Terms, Application and Scope of NEPA Review

• Provide direction regarding the threshold consideration of whether NEPA applies to a particular action
• Require earlier solicitation of input from the public to ensure informed decision-making by federal agencies
• Require comments to be specific and timely to ensure appropriate consideration
• Require agencies to summarize alternatives, analyses, and information submitted by commenters and to certify consideration of submitted information in the ROD
• Simplify the definition of environmental “effects” and clarify that effects must be reasonably foreseeable and have a reasonably close causal relationship to the proposed action
• State that analysis of cumulative effects is not required under NEPA
• Clarify that “major Federal action” does not include non-discretionary decisions and non-Federal projects (those with minimal Federal funding or involvement)
• Clarify that “reasonable alternatives” requiring consideration must be technically and economically feasible

Enhance Coordination with States, Tribes, and Localities

• Reduce duplication by facilitating use of documents required by other statutes or prepared by State, Tribal, and local agencies to comply with NEPA
• Ensure appropriate consultation with affected Tribal governments and agencies
• Eliminate the provisions in the current regulations that limit Tribal interest to reservations

Reduce Unnecessary Burdens, Delays

• Facilitate use of efficient reviews (categorical exclusions (CEs), environmental assessments)
• Allow agencies to establish procedures for adopting other agencies’ CEs
• Allow applicants/contractors to assume a greater role in preparing EISs under the supervision of an agency

What’s Next?

CEQ is requesting public comment on the NPRM. It will hold public hearings on the following dates: 1. February 11, 2020, U.S. Environmental Protection Agency Region 8, 1595 Wynkoop Street, Denver, CO; and 2. February 25, 2020, U.S. Department of the Interior, Yates Auditorium, 1849 C Street NW, Washington, DC.

CEQ is also accepting written comments, which may be submitted through the Federal eRulemaking Portal: https://www.regulations.gov. Comments must be submitted on or before March 10, 2020.

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 201-806-3364.