Proposed Revisions to the NEPA Regulations

Background

The National Environmental Policy Act of 1969 (NEPA) was signed into law by President Nixon on January 1, 1970. The White House Council on Environmental Quality (CEQ) initially issued guidelines for implementing NEPA in 1970, revised those guidelines in 1973, and subsequently promulgated its NEPA implementing regulations in 1978. The original goals of those regulations were to reduce paperwork and delays, and promote better decisions consistent with the national environmental policy established by the Act.

Since their promulgation some 50 years ago, there’s been a consensus among many of the need for further clarification of the regulations. This is evident with the more than 30 guidance documents the CEQ has issued to assist Federal agencies in complying with the NEPA regulations.  In addition, there have been numerous court decisions addressing appropriate implementation and interpretation of NEPA and CEQ regulations as well as Presidential directives and legislation, in an attempt to reduce unduly delays and expedite the NEPA process.

 

Proposed Rulemaking

On January 10, the CEQ published a Notice of Proposed Rulemaking (NPRM) unveiling its highly anticipated proposed changes to the NEPA regulations and the first significant update since their original publication in 1978. The comprehensive amendments are designed to modernize and streamline the NEPA process by facilitating more efficient and timely reviews. The proposal explains that the “lengthy, costly, and complex” NEPA process has slowed or prevented the development of certain new infrastructure. CEQ’s proposal aims to simplify regulatory requirements, reflect current technologies and agency practices, and improve the format and readability of the regulations.

Because of NEPA’s broad applicability, virtually all federal projects, funding decisions, grants, and rulemaking can be required to undergo a NEPA review. While certain federal agencies (Bureau of Land Management, US Department of Energy, and US Army Corps of Engineers) have their own NEPA rules, the CEQ’s regulations govern NEPA compliance across all federal agencies. If finalized, the rule would require agencies to develop or revise their NEPA procedures to align with CEQ’s new regulations within one year of the final rule’s publication. Most notably, the proposed rule would give agencies discretion to apply the new regulations to ongoing activities and environmental reviews commenced prior to that date.

 

The following are some of the key provisions of the proposed rulemaking:

  • NEPA Threshold Applicability: The NPRM proposes to add a “NEPA threshold applicability analysis” section that will provide a series of considerations to assist agencies with conducting threshold analyses for determining whether NEPA applies. The NPRM would revise the definition of a “major federal action” to exclude “non-Federal projects with minimal Federal funding or minimal Federal involvement where the agency cannot control the outcome of the project.” For example, CEQ notes that this revision might exclude a NEPA review of the entirety of a project for which a small amount of Federal funding is provided to help design an infrastructure project that is otherwise funded through private or local funds.
  • Lead and Cooperating Agencies and Reducing Duplicative Efforts: The proposal would require agencies to issue a single EIS and ROD (or, for EAs, a single EA and joint FONSI) for actions involving multiple agencies when practicable. The lead agency is responsible for developing a joint schedule and procedures to elevate delays or disputes. These provisions adopt key elements of the One Federal Decision policy established by Executive Order 13807. The NPRM also authorizes and requires cooperation between Federal, State, Tribal and local agencies to reduce duplication and clarifies that NEPA regulations do not require reconciliation of inconsistencies with State, Tribal or local laws.
  • Amends the Definition of “Effects” or “Impacts”: The Proposal modifies the definition of “effects” or “impacts” as the effects “that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives.” The proposal also states that effects should not be considered significant if they are remote in time, geographically remote, or the product of a length causal chain. In addition, in a significant shift from the current rules, the proposed rule would expressly state that analysis of cumulative effects (as defined in the current regulations) are not required.
  • Purpose and Need Statement and Definition of “Reasonable Alternatives”: The proposed rule would revise provisions related to the purpose and need statement and the definition of reasonable alternatives. The NPRM also proposes to define “reasonable alternatives” as alternatives that are (i) technically and economically feasible; (ii) meet the purpose and need for the proposed action; and (iii) meet the goal of the applicant (where applicable).
  • Time and Page Limits: The NPRM notes that the average environmental impact statement (EIS) takes over 4.5 years to complete. The CEQ proposes to set presumptive time limits of two years for completion of EISs and one year for completion of environmental assessments (EAs), with the possibility of extensions. The Proposal also sets presumptive page limits of 75 pages for EAs and 300 pages for EISs, unless a senior agency official provides written approval to lengthen the document.

 

Where do we go from here?

The proposed rulemaking was published in the Federal Register on January 10, 2020. Public comments to the NPRM are due March 10, 2020. If finalized, the proposed changes could significantly alter and improve the NEPA landscape by streamlining and clarifying the entire process. One would expect any final action to revise the NEPA regulations will be met with a high level of resistance.

PPM will continue to monitor the rulemaking process and keep you informed of important updates. If you have any questions or needs involving environmental compliance or permitting, give us a call at (251) 990-9000. Feel free to reach us by email: Isaac Smith (isaac.smith@ppmco.com), Ned Coleman (ned.coleman@ppmco.com).

 

Contributed by Isaac Smith, District Manager