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.

The NRC Office of Nuclear Reactor Regulation (NRR) recently issued Revision 4 to Office Instruction LIC-203, “Procedural Guidance for Categorical Exclusions, Environmental Assessments, and Considering Environmental Issues.” The update reflects recent NRC organizational changes and internal procedures related to the agency’s environmental review activities. These changes do not impose any new obligations on NRC applicants. However, a proper understanding of the agency’s internal processes can be helpful in developing successful licensing strategies. The key changes are summarized below.

Our energy lawyers have prepared a LawFlash addressing the notice of proposed rulemaking (NPRM), “Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act,” published today in the Federal Register by the White House’s Council on Environmental Quality (CEQ). The proposed rule has four major elements: (1) to modernize, simplify, and accelerate the NEPA process; (2) clarify terms, application, and scope of NEPA review; (3) enhance coordination with states, tribes, and localities; and (4) reduce unnecessary burdens and delays.

To date, the commercial nuclear power industry has expressed strong support for the types of rule changes proposed by the CEQ in its NPRM, as they are intended to streamline and expedite the federal agency NEPA review process. Those in the industry that depend on federal agency action when advancing projects and securing permits should actively participate in the proposed rulemaking and help the CEQ build a sufficient agency record to defend against any later litigation challenges to new regulations.

Read the full LawFlash.

As noted in this article by Morgan Lewis antitrust lawyers, the role of antitrust laws in labor markets, including in the energy field, remains a key area of focus by enforcers, including the Antitrust Division of the US Department of Justice and the Federal Trade Commission. At a public workshop on competition in labor markets in September 2019, Assistant Attorney General Makan Delrahim reaffirmed “that criminal prosecution of naked no-poach and wage-fixing agreements remains a high priority for the Antitrust Division.”

The New Jersey Board of Public Utilities (BPU) approved applications submitted by PSEG Nuclear LLC seeking subsidies of up to $300 million annually, in the form of zero emission credits (ZECs), for PSEG’s Hope Creek and Salem 1 and 2 nuclear generating stations on April 18. The PSEG applications were filed on December 19, 2018, after New Jersey enacted legislation on May 23, 2018, establishing a ZEC program for the state (the ZEC Act).