In a June 25, 2019, letter to the Chairman of the US Nuclear Regulatory Commission (NRC), Senators John Barrasso and Mike Braun requested that the agency develop a Generic Environmental Impact Statement (GEIS) for the construction and operation of advanced reactors. The letter asserts that a GEIS “will be a critical step to facilitate the deployment of new nuclear technologies” and “will focus NRC’s licensing efforts on the most important safety issues, reduce NRC staff resources dedicated to environmental permitting, and align with Congressional and Executive Branch efforts to conduct environmental permitting reviews more efficiently.”

The US Department of Energy (DOE) issued a Supplemental Federal Register Notice on June 5 that addresses its interpretation of what constitutes high-level radioactive waste (HLW). The DOE said the notice reflects DOE policy modifications informed by public comments it received during the 90-day public comment period after it issued the initial Federal Register Notice on October 10, 2018. DOE stated that it received roughly 360 distinct, unrepeated comments from a variety of stakeholders: members of the public, Native American tribes, members of Congress, numerous state and local governments, and one federal agency, the Nuclear Regulatory Commission (NRC).

The Nuclear Regulatory Commission (NRC) recently issued Revision 3 of Regulatory Guide (RG) 4.2, “Preparation of Environmental Reports for Nuclear Power Stations.”  Revision 3 provides a long-overdue update to RG 4.2, which was last revised in 1976.  Given the numerous changes to applicable environmental statutes, regulations, and executive orders since that time, the NRC issued two interim staff guidance (ISG) documents in 2014.  Revision 3 incorporates guidance from those ISGs insofar as it relates to information that an applicant must include in its Environmental Report (ER) for any requested permit, license, or other authorization to site, construct, and/or operate a new nuclear power plant.  Prior to issuing RG 4.2, Revision 3, the Staff published a draft version thereof in February 2017 and responded to comments received on the draft.

As William Faulkner once said, “The past is never dead. It’s not even past.” Major infrastructure project developers may feel this way when preparing for environmental reviews as part of licensing action due to a new decision from the US Court of Appeals for the DC Circuit. In American Rivers v. FERC, Case Nos. 16-1195 & 16-2336 (2018), the DC Circuit found that the actions of the Federal Energy Regulatory Commission (FERC) were arbitrary and capricious when the agency issued a renewed operating permit to a hydroelectric plant. The DC Circuit concluded that the supporting environmental analysis treated the continued operation of the plant as the “environmental baseline” and therefore failed to consider the environmental impacts associated with the initial licensing, construction, and operation of the plants.

The facts of American Rivers are straightforward. When a utility applied to relicense its hydroelectric plants along the Coosa River in Alabama, the US Fish and Wildlife Service (USFWS) and FERC were required to analyze the environmental impacts of relicensing by the Endangered Species Act and the National Environmental Policy Act (NEPA). The two government agencies did so, but used the current status of the Coosa River, i.e., with multiple hydroelectric projects already built along the river, as the “environmental baseline” from which the analyses began. By utilizing this baseline, the analyses only considered changes to the current conditions of the river, while environmental groups argued that the existing plants on the river had already had detrimental impacts on various endangered aquatic animals and the environment. Those groups argued that beginning the analyses from the current “degraded” baseline was not permissible and that the analyses needed to consider the impacts from project construction and operation in the past.

As we reported last month, on June 20, the Council on Environmental Quality (CEQ) initiated the rulemaking process to revise its National Environmental Policy Act (NEPA)–implementing regulations by publishing an Advance Notice of Proposed Rulemaking (ANPR) in the Federal Register. The ANPR seeks public comments on “potential revisions to update the regulations and ensure a more efficient, timely, and effective NEPA process consistent with the national environmental policy stated in NEPA.” On July 11, the CEQ announced that it is extending the comment period, which was scheduled to close on July 20, for 31 days until August 20, 2018, in response to public requests for a time extension. See 83 Fed. Reg. 32,071 (July 11, 2018). The Federal Register notices also provide instructions for filing comments on the ANPR.

We reported last month that the Council on Environmental Quality (CEQ), the US federal agency responsible for coordinating and overseeing federal agency implementation of the National Environmental Policy Act (NEPA), had signaled its intention to update the CEQ’s longstanding NEPA-implementing regulations (40 CFR Parts 1500-1508). On June 20, the CEQ initiated the rulemaking process by publishing an Advance Notice of Proposed Rulemaking (ANPR) in the Federal Register (83 Fed. Reg. 28,591). The ANPR seeks public comments “on potential revisions to update the regulations and ensure a more efficient, timely, and effective NEPA process consistent with the national environmental policy stated in NEPA.” The deadline for comments is July 20, 2018.

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.”