The Council on Environmental Quality (CEQ) published a final rule in the Federal Register on July 16, 2020, updating its regulations for implementing the National Environmental Policy Act (NEPA). The amended regulations – the first significant update in more than 40 years – are intended to streamline environmental review of federally approved or funded projects, and to effectuate previous Executive Orders (EO) of the Trump Administration that sought the same.
Proponents of projects subject to federal funding or approvals should be aware of the sweeping revisions to the NEPA regulations, as they may result in greater expediency for project approvals, as well as increased scrutiny from opponents. While CEQ's updated regulations may be welcomed by project proponents, the regulations are likely to be subject to legal challenges as soon as they are applied to a particular project.
Often called the linchpin of U.S. environmental laws, NEPA directs federal agencies to review proposed actions and to consider potential impacts that the action will have on the social, economic and physical environment. Generally, NEPA applies to projects requiring a federal approval or permit, receiving federal funding, or impacting federally owned public land. NEPA is a "process-forcing" statute designed to ensure that environmental considerations are factored into the decision-making process of federal agencies.
The substantive requirements of the NEPA process are largely found in CEQ's regulations (augmented by certain federal agencies' regulations and policies). Although CEQ has issued a number of guidance documents over the decades, the agency has only substantively amended its NEPA regulations once (in 1986) since their initial adoption. Meanwhile, an extensive body of case law has developed around the interpretation and application of NEPA and CEQ's implementing regulations which also guides federal agencies.
Prior to CEQ's issuance of revised NEPA regulations, the Trump Administration has consistently endeavored to expedite the permitting and environmental review processes for major infrastructure projects (e.g., transit, energy, water and telecom). For example, EO 13807 of August 2017 directed federal agencies to coordinate and expedite their environmental reviews of major infrastructure projects.
To streamline environmental reviews and procedures under NEPA, the updated regulations accomplish the following:
In issuing the revised regulations, CEQ noted that the average EIS is more than 600 pages and takes an average of 4½ years to produce. Under the revised regulations, EAs must be prepared within 1 year, and EISs in 2 years (measured from the Notice of Intent), unless the lead agency's senior official agrees to an extension. In turn, the regulations impose new page limits and word limits for each page. EAs must be 75 pages or fewer, not including appendixes; and EISs must be 150 pages or fewer, or 300 for "unusual or complex" proposals, unless a senior agency official agrees to extend those limits. Further, each page is limited to 500 words, excluding maps, diagrams and graphs.
The revised regulations include a number of significant changes to the regulatory definitions of NEPA terms:
Now, agencies are limited to considering the effects of an action that have "a reasonably close causal relationship to the proposed action." Reasonably foreseeable effects are limited to "what a person of ordinary prudence in the position of the agency decision maker would consider in reaching a decision."CEQ explains that agencies should not consider effects that are "remote in time, geographically remote, or the result of a lengthy causal chain." Under this new standard, the mere fact that an effect might not occur "but for" the project is not sufficient to trigger a NEPA analysis. Rather, there must be a close causal relationship between the federal project and the effect, analogous to proximate cause in tort law. This new "effects" framework is likely to lead to reduced consideration of downstream impacts that have often resulted in legal challenge, such as the Federal Energy Regulatory Commission and U.S. Department of Interior's consideration of downstream greenhouse gas impacts resulting from pipeline and mineral leasing decisions, respectively.
By September 2021, federal agencies must update their internal NEPA regulations and policies to be consistent with CEQ's revised regulations.
For proponents of projects requiring federal approvals or funding, CEQ's revised regulations are likely a welcome change. While the regulations cannot address the practical problems that have resulted in lengthy permitting periods (e.g., limited agency resources and staff), the prospect of shorter and quicker EISs and interagency coordination – which until recently were the product of EO directives and a memorandum of understanding – are now codified in federal regulations.
However, CEQ's revised regulations may undoubtedly be challenge once applied. An EIS subject to shortened page limits (and now word limits) may be viewed by project opponents with increased scrutiny as to whether it fulfills the NEPA statute's obligation to provide informed decision-making. If pages are limited, the agency may risk not adequately explaining its rationale or may overlook an important environmental impact, and thus fail to take the required "hard look" at the project's impacts.
While CEQ – like other federal agencies – is owed deference to the regulations it promulgates, reviewing courts may question the extent to which the updated regulations are consistent with the NEPA statute as interpreted for the past several decades. Agencies and stakeholders will be monitoring NEPA cases closely to see how courts reconcile CEQ's updated regulations with NEPA case law that involved now superseded regulations.
For more information and questions on the updated NEPA regulations, please contact the authors.
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