
Daniel T. McKillop
Partner
201-896-7115 dmckillop@sh-law.comFirm Insights
Author: Daniel T. McKillop
Date: July 22, 2020
Partner
201-896-7115 dmckillop@sh-law.comThe 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.”
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.
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
Codification of Relevant Case Law
Public Involvement
Environmental Reviews
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 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.
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