Up & Atom

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.

CEQ seeks comments on 20 specific questions that fall broadly into three categories: (1) NEPA Process, (2) Scope of NEPA Review, and (3) General. The ANPR further invites commenters to provide “specific recommendations on additions, deletions, and modifications to the text of CEQ’s NEPA regulations,” including their justifications, to update and clarify the regulations. Among other things, CEQ seeks public feedback on whether:

  • the regulations should be revised to ensure optimal interagency coordination of environmental reviews and authorization decisions, including more “concurrent, synchronized, timely, and efficient” decisions when multiple agencies are involved;
  • any rule changes could better facilitate agency use of environmental studies, analysis, and decision conducted in earlier reviews;
  • provisions relating to agency responsibility and preparation of NEPA documents by contractors and/or project applicants should be modified;
  • the regulations relating to programmatic NEPA documents and tiering should be revised;
  • the scope of agency NEPA reviews, including whether rules for formats and page lengths of NEPA documents, should be revised;
  • the CEQ should include time limits for completion of agency NEPA reviews;
  • the rules for public involvement should be revised to be more inclusive and efficient;
  • the definitions of key terms, such as “major federal actions,” “effects,” “cumulative impacts,” “significantly,” “scope” and others, should be revised;
  • new definitions, such as for the terms “alternatives,” “purpose and need,” “reasonably foreseeable,” and “trivial violation,” should be added to the regulations;
  • provisions relating to certain types of NEPA documents (e.g., categorical exclusions documentation, environmental assessments, environmental impact statements, records of decision, supplements) should be altered;
  • any of the regulations’ current provisions are “obsolete” and can be updated to reduce “unnecessary burdens and delays;”
  • the rules can be changed to better reflect or incorporate new, efficiency-boosting technologies; and
  • mitigation requirements should be revised.

Many of the questions posed by CEQ are consistent with efforts that other federal agencies already have taken to streamline the NEPA process for major infrastructure projects, such as the US Department of the Interior's Secretarial Order 335, which requires a final environmental impact statement to be completed within one year from the notice of intent and not to exceed 300 pages, as well as the One Federal Decision Memorandum of Understanding signed by 12 federal agencies committing to a coordinated NEPA process that allows all permitting decisions to be completed within two years. Those efforts, as well as the CEQ’s ANPR, have been driven largely by Executive Order 13807, which President Donald Trump issued August 15, 2017, to “enhance and modernize” the environmental review and permitting process for infrastructure.

The CEQ’s regulations were issued in 1978 and amended in 1986, and have not been comprehensively revised since that time. The NEPA process is highly visible and pervasive, applying to all “major federal actions” taken by innumerable US federal agencies, such as the Nuclear Regulatory Commission, Federal Energy Regulatory Commission, US Department of Energy, Environmental Protection Agency, US Army Corps of Engineers, US Forest Service, US Department of Interior, Bureau of Land Management, and US Department of Transportation—to name just a few. As such, the CEQ likely will be inundated with voluminous public comments. Early environmental trade press articles, moreover, suggest that many environmental advocacy groups will vigorously oppose any major changes to the current regulations, and portray the current administration as seeking to eviscerate what many view as the nation’s landmark environmental statute. Given the likely active involvement from environmental groups in this rulemaking, it will be important for industry entities that depend on federal agency action when advancing projects and securing permits to actively participate in the rulemaking, suggesting improvements, and providing examples of how the NEPA process can unnecessarily delay and stymie projects, even where the environmental impacts can be managed effectively. Such comments will be critical to CEQ having a sufficient agency record to defend against any later litigation challenges to new regulations, challenges that seem quite likely to occur if changes are made to the long-standing rules.

We will continue to monitor the CEQ’s actions and the related responses of its many interested stakeholders, as they have significant implications for both federal agencies and private entities.