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Up & Atom

The White House’s Council on Environmental Quality (CEQ) recently published in the Federal Register a final rule, Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act. The final rule is the latest in a series of actions taken by the Trump administration and the CEQ to “modernize and clarify” the CEQ’s National Environmental Policy Act (NEPA) implementing regulations to “facilitate more efficient, effective, and timely NEPA reviews by Federal agencies in connection with proposals for agency action.”

The CEQ’s NEPA regulations were first published nearly 40 years ago. In the ensuing decades, the scope and duration of federal agencies’ NEPA reviews have grown substantially. Accordingly, stakeholders have pushed to streamline the NEPA review process. In January 2020, CEQ published a notice of proposed rulemaking seeking public input on potential updates to its regulations. In response, CEQ received more than 1.1 million comments. The vast majority of these were form-letter submissions, but CEQ did receive 2,359 unique, substantive comments on the proposed rule. Key similarities and differences in the final rule, and potential implications for NRC license applicants, are summarized below.

What Stayed the Same?

As in the proposed rule, CEQ's final rule includes a significant revision to the language regarding the “effects” that must be considered in a NEPA review. More specifically, the final rule no longer uses the terms “direct,” “indirect,” and “cumulative.” CEQ’s rationale for this change is that the terms were somewhat confusing and often led to delays caused by ensuing litigation. The final rule defines an “effect” as affecting the “human environment,” being “reasonably foreseeable,” and having “a reasonably close causal relationship to the proposed action.”

Additionally, the final rule retains language establishing a two-year time limit for agencies to complete environmental impact statements (EIS), and a one-year time limit to complete environmental assessments (EA).

What Changed?

In response to public comments, CEQ also made some fairly important changes to the final version of the rule. As a general matter, it appears these changes were driven primarily by a desire to minimize litigation risk regarding the rule itself. In effect, however, some of the changes may have simply shifted that risk to the agency level.

For example, the proposed rule sought comment on whether to include an affirmative statement that consideration of “indirect” effects is not required. The final rule does not include this proposed prohibition. However, it also does not include any “additional direction to agencies specific to indirect effects.” Thus, agencies are left to consider, on a case-by-case basis, whether, how, and to what extent to evaluate effects that were considered “indirect” under the previous rule language.

As another example, CEQ initially proposed eliminating the consideration of climate change altogether. However, the final rule directs agencies to consider “environmental trends” (including those attributed to climate change) in analyzing the project baseline. In essence, this would prevents agencies from characterizing climate change as an effect of a proposed action. Thus, while the rule itself now contemplates climate change, individual agency actions still may be subject to challenge on this topic.

What Are the Implications for NRC License Applicants?

In effect, these changes will have no immediate impact on NRC license applicants. The NRC has long taken the position that CEQ regulations are not binding on the NRC because it is an independent federal agency. Rather, the NRC has its own NEPA regulations, codified in 10 CFR Part 51. The CEQ final rule does not amend the NRC’s regulations.

However, as a matter of policy, the NRC has long modeled Part 51 on CEQ’s regulations. Media reports indicate that an NRC spokesman stated that the agency “will most likely continue to do so” here. Thus, an update to Part 51 may be forthcoming. However, the timing and scope of any proposed changes is entirely speculative.

In sum, the final rule language represents a significant step forward in streamlining NEPA reviews. Unfortunately, these changes do not immediately impact NRC license applicants, and likely will face judicial challenges in the coming months and years. We will continue to monitor and report on further developments in this area.