CEQ Proposes Revisions to Accelerate Review Under the National Environmental Policy Act | Practical Law

CEQ Proposes Revisions to Accelerate Review Under the National Environmental Policy Act | Practical Law

The Council on Environmental Quality (CEQ) proposed a rule that would make significant changes and clarifications to the regulations implementing the National Environmental Policy Act (NEPA) to accelerate and modernize NEPA reviews.

CEQ Proposes Revisions to Accelerate Review Under the National Environmental Policy Act

by Practical Law Finance
Published on 16 Jan 2020USA (National/Federal)
The Council on Environmental Quality (CEQ) proposed a rule that would make significant changes and clarifications to the regulations implementing the National Environmental Policy Act (NEPA) to accelerate and modernize NEPA reviews.
On January 9, 2020, the Council on Environmental Quality (CEQ) announced a notice of proposed rulemaking (NPRM), titled "Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act (NEPA)," which would make significant changes to the regulations implementing the National Environmental Policy Act (NEPA)(NEPA) to streamline and modernize NEPA reviews. If implemented, the NPRM would be the first major overhaul of this statute in more than 40 years.
NEPA is a federal statute that requires federal agencies to file environmental impact statements (EISs) to assess the environmental impacts of proposed major federal actions.
The NPRM proposes to:
In July 2018, the CEQ issued an advance notice of proposed rulemaking (ANPRM) requesting comment on potential updates to NEPA regulations that would, among other things, implement aspects of the OFD framework. The NPRM considers comments received under the ANPRM.
The NPRM proposes procedural changes, substantive changes, and changes to the way federal agencies coordinate with one another.

Procedural Changes

The NPRM would simplify and accelerate the NEPA process by:
  • Establishing presumptive time limits of:
    • two years to complete an EIS, measured from the date of the issuance of the notice of intent to the date a record of decision (ROD) is signed; and
    • one year to complete environmental assessments (EAs), measured from the date of decision to prepare an EA to the publication of the final EA.
    According to the CEQ, the current average time for federal agencies to complete NEPA reviews is four and a half years.
  • Specifying presumptive pages limits of:
    • 150 pages for a final EIS;
    • 300 pages for an EIS "of unusual scope or complexity;" and
    • 75 pages for EAs.
    According to the CEQ, the current average length of an EIS is over 600 pages.
  • Specifying recommended EIS formats, including details regarding the cover, summary, table of contents, purpose of and need for action, alternatives (including the proposed action), the affected environment and environmental consequences, information and analyses, list of preparers, and appendices.
  • For EISs involving multiple agencies, requiring, where appropriate, joint schedules, a single EIS, and a single ROD.
  • Strengthening and clarifying the role of the lead agency and requiring senior agency officials to timely resolve disputes to avoid delays.
  • Promoting the use of modern technologies such as geographic information system (GIS) mapping tools and social media, which are now widely used by agencies, for information sharing and public outreach.

Substantive Changes

The NPRM would also make significant substantive changes to the environmental review process. Under current NEPA regulations, agencies consider the "direct," "indirect," and "cumulative" environmental effects of the projects under their review. The NPRM would change the definition of environmental "effects" to limit it to those that are "reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives." Agencies would no longer be allowed to consider as significant effects that "are remote in time, geographically remote, or the result of a lengthy causal chain." The CEQ proposes to define "reasonably foreseeable" as "what a person of ordinary prudence would consider in reaching a decision."
The CEQ also proposes to codify a key holding of the Department of Transportation v. Public Citizen which found that an agency has no obligation to gather or consider environmental information for NEPA review if it has no statutory authority to act on that information or adopt a course of action that could prevent or otherwise impact the environmental effects (541 U.S. 752, 767-68 (2004)). For more information on this decision, see Article, FERC's Consideration and Quantification of Greenhouse Gas Emissions in Its Review of Natural Gas Pipeline Projects.
Other key substantive changes include:
  • Replacing the current Part 1501.1, "Purpose," with a new section to address threshold considerations with a new threshold applicability analysis.
  • Requiring earlier solicitation of input from the public.
  • Adding additional sections to address the level of NEPA review and categorical exclusions (CEs), providing for a more detailed process by which an agency considers whether a proposed action is categorically excluded under NEPA.
  • Consolidating and clarifying provisions on EAs and findings of no significant impact (FONSIs), which an agency typically prepares when it determines in its EA that an EIS is not required.
  • Clarifying that "major federal action" does not include non-discretionary decisions and non-federal projects, or those with minimal federal funding or involvement.
  • Clarifying that "reasonable alternatives" must be technically and economically feasible, and would preclude, for example, alternatives that are outside an agency's jurisdiction due to the agency's lack of statutory authority to implement that alternative.

Agency Coordination

The NPRM also intends to enhance coordination with states, tribes, and localities and reduce unnecessary burdens and delays by:
  • Authorizing agencies to cooperate with state, tribal, and local agencies.
  • Reducing duplication by facilitating the use of documents required by other statutes or prepared by state, tribal, and local agencies to comply with NEPA, such as:
    • encouraging the use of prior reviews and decisions;
    • allowing an agency to adopt another agency's determination to apply a CE to a proposed action if the adopting agency's proposed action is substantially the same action; and
    • allowing agencies to establish a process in their NEPA procedures to adopt another agency's CE generally.
  • Clarifying that NEPA does not require reconciliation of inconsistencies between the proposed action and state, tribal, or local plans or laws, though the EIS should discuss the inconsistencies.
  • Ensuring appropriate consultation with affected tribal governments and agencies regarding a proposed action’s potential effects on tribal lands, resources, or areas of historic significance.
  • Eliminating the provisions in the current regulation that limit tribal interest to reservations.
  • Allowing applicants and contractors to assume a greater role in preparing EISs under the supervision of an agency.
The CEQ is requesting public comment on the NPRM which must be submitted by March 10, 2020.
The CEQ will also hold two public hearings on the proposed rule on:
  • February 11, 2020, in Denver, CO.
  • February 25, 2020, in Washington, D.C.
The CEQ also released a fact sheet and press release on the NPRM.

Practical Implications

This proposal is the latest Trump Administration initiative to limit environmental review of projects and expedite and promote infrastructure development. It is used by all federal agencies including the Department of Transportation, the Department of Energy, the Environmental Protection Agency and the Federal Energy Regulatory Commission and therefore has implications for a wide range of public infrastructure projects including natural gas pipelines, liquefied natural gas facilities, and energy generation facilities (renewable and fossil fuel based).
Given these implications, the proposal will certainly be challenged by states, environmental groups and other interested stakeholders. Moreover, while many stakeholders have sought changes to NEPA to reduce cost, complexity, and to speed up the review of infrastructure projects, the CEQ proposal may be seen by some as going beyond that and unduly limiting necessary environmental reviews and ignoring the climate effects of these projects including their downstream and upstream greenhouse gas emissions.
NEPA does not create a private cause of action but interested stakeholders may challenge the proposal under the Administrative Procedure Act, arguing that the new regulations are arbitrary and capricious. Also, depending on when this rule is finalized and the outcome of the 2020 elections, this proposal may also be overturned under the Congressional Review Act (CRA). The CRA authorizes Congress to use a "fast track" procedure to overturn rules issued or approved by federal agencies in the last 60 days of the last session of the previous Congress. For more information on the CRA, see Legal Update, OMB Issues Guidance to Federal Agencies on Compliance with Congressional Review Act.
The procedural aspects of the proposal may also be an issue. Many observers are concerned that the time and page limits may result in agencies doing inadequate or incomplete reviews of projects, potentially leading to court challenges.
For more information on environmental impact reviews and NEPA regulations, see Practice Notes, Environmental Law: Overview and Environmental Impact Review: Overview.