The Council on Environmental Quality (CEQ), the US federal agency tasked with coordinating and overseeing federal agency implementation of the National Environmental Policy Act (NEPA), has signaled its intention to update the CEQ’s longstanding NEPA-implementing regulations (40 CFR Parts 1500-1508). That intention is reflected in the spring 2018 version of the semiannual “Unified Agenda of Federal Regulatory and Deregulatory Actions” (Unified Agenda) published by the Regulatory Information Service Center and the Office of Management and Budget’s Office of Information and Regulatory Affairs. According to the CEQ's statement in the Unified Agenda, “[w]hile CEQ has issued memoranda and guidance documents over the years, CEQ believes it is appropriate at this time to consider updating the implementing regulations.”
The CEQ is considering this rulemaking activity in response to Section 5(e) of Executive Order 13807, “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure,” issued on August 15, 2017. Section 5(e) directed the CEQ to develop an initial list of actions it will take to enhance and modernize federal environmental review and authorization processes. The CEQ complied with that directive via its publication of a Federal Register notice in September 2017 (82 Fed. Reg. 43,226), “Initial List of Actions to Enhance and Modernize the Federal Environmental Review and Authorization Process.” At that time, the CEQ noted its plan to review its NEPA-implementing regulations to assess the need for revisions.
Although the CEQ is still in the pre-rulemaking phase, the Unified Agenda is a precursor to the agency’s issuance of an Advance Notice of Proposed Rulemaking. This is a significant development given the pervasive reach of NEPA—sometimes called the “Magna Carta” of federal environmental laws—which applies to all “major Federal actions,” including licensing and rulemaking actions of the Nuclear Regulatory Commission (NRC), Federal Energy Regulatory Commission, Department of Energy, and Environmental Protection Agency. The CEQ’s regulations were issued in 1978 and amended in 1986, and have not been comprehensively revised since that time. Thus, any major substantive revisions to the CEQ’s regulations could materially affect how federal agencies discharge their NEPA obligations.
At this early stage, it is not possible to discern the precise nature and scope of any future revisions to the CEQ’s regulations. However, Executive Order 13807—the impetus for the CEQ’s incipient rulemaking initiative as well as the recent “One Federal Decision” Memorandum of Understanding executed by numerous federal agencies on April 9—plainly focuses on streamlining federal environmental review processes. Notably, it expressly seeks to “ensure that agencies apply NEPA in a manner that reduces unnecessary burdens and delays as much as possible, including by using CEQ’s authority to interpret NEPA to simplify and accelerate the NEPA review process.”
As we counsel NRC-regulated entities that regularly encounter NEPA compliance issues in the licensing and adjudicatory contexts, we will continue to closely follow developments on this front.