On December 9, the White House Council on Environmental Quality (CEQ) released a proposed rule to overhaul the enforcement of National Environmental Policy Act (NEPA) entitled, “Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act.” This overhaul represents the first major change to NEPA regulations in over 40 years.

Background

Signed into law in 1970, and currently codified in chapter 55 of title 42, U.S.C., NEPA requires agencies to evaluate the environmental effects of major Federal actions. NEPA was implemented using “guidelines” (not formal regulations) adopted in 1970 and then revised in 1973. Formal implementing regulations were issued in 1978 because “some agencies viewed [the guidelines] as advisory only” and because “courts differed over the weight which should be accorded the Guidelines…” The 1978 regulations have not seen significant amendment since then – until now. (The regulations are currently codified in 40 CFR starting at Part 1500.)

The CEQ coordinates between the White House and the nearly 80 agencies that fall under NEPA obligations. According to CEQ, it often takes federal agencies between four and seven years to complete environmental impact statements (EIS) and the statements exceed 600 pages on average. President Trump issued an executive order, known as One Federal Decision, in 2017 directing CEQ to amend the NEPA process by developing a single permitting timetable for environmental review and authorization, preparing a single EIS, signing a single record of decision, and issuing authorization decisions within 90 days.

In 2016, the Obama Administration issued a guidance to assist agencies with consideration of proposed projects’ effects on climate change and greenhouse gas emissions when conducting NEPA reviews. This guidance was reversed in 2019 when the CEQ under President Trump published draft guidance for agencies that, while maintaining much of the same substance as the Obama-era guidance, removed all mentions of climate change and rather stated that, “[w]hen relevant, agencies should consider whether the proposed action would be affected by foreseeable changes to the affected environment under a reasonable scenario.”

The Trump Administration telegraphed its intention to redraw the NEPA regulations in June 2018 when CEQ formally asked for public comment on possible revisions of 20 parts of the NEPA regs. Over 12,500 public comments were received.

Details of the proposed rule

The NPRM is aimed at four key elements, including to modernize, simplify, and accelerate the NEPA process; to clarify terms, application, and scope of NEPA review; to enhance coordination with States, Tribes, and localities; and to reduce unnecessary burdens and delays in the NEPA process.

Among the major changes to NEPA in this NPRM:

• The CEQ will no longer be required to consider the cumulative effects of new projects (Note: In the past, EPA has defined cumulative as “the combined, incremental effects of human activity”. To date, courts have largely interpreted this as assessing a project’s contributions to climate change);
• The definition of environmental “effects” (quotes theirs) will be simplified and officials will be required to consider effects of a project that are reasonably foreseeable and show a reasonably close causal relationship;
• Agencies will be required to complete EISs in two years and page limits would be specified;
• Project leaders will be required to coordinate with only one agency instead of each agency with jurisdiction over the project;
• Applicants and contractors will assume a greater role in EIS preparation

In addition to these procedural changes, the proposed rule would enable more “efficient reviews” (quotes theirs) by facilitating the less cumbersome categorical exclusions and environmental assessments processes, thus allowing projects to bypass the full EIS.

Reactions and next steps

The proposed rule has been met with mixed feedback. In a statement, House Transportation and Infrastructure chairman Peter DeFazio (D-OR) called it “reckless and costly” and referred to its negative effects on not only the environment, but also on public health. The construction industry and the Chamber of Commerce, on the other hand, welcome the overhaul, indicating that shorter decision timelines will lead to economic benefits as projects are accelerated.

In a statement, Rep. Raúl Grijalva (D-AZ) indicated that the changes are illegal, pointing to past court rulings stating that NEPA must consider climate change. Environmental lawyer Richard L. Revesz echoed this in a statement to the New York Times, specifying that the new regulation cannot change the statute that environmental consequences be assessed in the NEPA process, and that under this new rule, agencies may actually be more likely to be sued for inadequate reviews.

The proposal is now open to public comment for 60 days and two public hearings before it is finalized. The final rule is expected sometime in the fall.