On July 16, 2020, the Council on Environmental Quality (CEQ) published its final rule to amend the regulations for implementation of the National Environmental Policy Act (NEPA) of 1969. The changes made to the 40-year-old review process are meant to improve interagency coordination, promote improved public involvement earlier in the NEPA process, and give local governments, tribes, and states more room to participate in the process. CEQ describes its efforts on this rule as intended to “facilitate more efficient, effective, and timely NEPA reviews by Federal agencies by simplifying regulatory requirements, codifying certain guidance and case law relevant to these regulations, revising the regulations to reflect current technologies and agency practices, eliminating obsolete provisions, and improving the format and readability of the regulations.” The final rule went into effect on September 14, 2020.
Under the final rule, the NEPA review process is altered in both subtle and direct ways. Among the notable changes are:
Presumptive Timelines and Page Limits: NEPA reviews will have presumptive time limits of one year for environmental assessments (“EAs”) and two years for environmental impact statements (“EISs”), and page limits of 75 pages (not including appendices) for EAs, 150 pages for routine EISs, and 300 pages for EISs covering matters of “unusual scope or complexity.” Exceptions can be granted on a case-by-case basis.
One Federal Decision and Adherence to Joint Schedules for Reviews and Agency Action: The final rule reinforces and codifies elements of the One Federal Decision policy under Executive Order No. 13807, titled “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects.” Where multiple federal agencies have discretionary decision making authority for a proposed project, the agencies must coordinate on scheduling and, where practicable, issue a single environmental document that can be relied on for each agency’s permitting or authorization decision as well as, to the extent practicable, a joint record of decision (“ROD”) or finding of no significant impact (“FONSI”). The joint schedules must reflect applicant input and extend to any authorizations required for a proposed action, as well as provide a means for resolution of inter-agency disputes and other issues that may cause delays in the schedule.
Front-loading of Analyses: The final rule makes important changes to the scoping process for an EIS, which, together with the adoption of shorter time limits and enforceable schedules, will place a premium on earlier data collection and analysis by permit applicants. Under the rule, scoping may begin “as soon as practicable after the proposal for action is sufficiently developed for agency consideration,” and agencies may require “appropriate pre-application procedures or work” prior to publishing a notice of intent (“NOI”). Further, the NOI now must include, among other information, a preliminary description of the proposed action, alternatives, and a brief summary of expected impacts. This approach not only places a priority on early data collection, but also affects the timing of the review because the issuance of the NOI starts the clock on the two-year presumptive time limit for completion of an EIS. Although CEQ advises that “agencies should not unduly delay publication of the NOI,” the approach to scoping and pre-application procedures under this rule gives agencies the ability to effectively extend the timeframe for EIS documents through pre-filing data requirements for permit applicants and other activities.
Scope of Effects Analysis: The final rule incorporates a number of significant changes to the overall scope of effects and alternatives to be analyzed, including:
a. Changing the definition of “major federal action,” which triggers NEPA review, to exclude non-federal projects with “minimal Federal funding or minimal Federal involvement where the agency does not exercise sufficient control and responsibility over the outcome of the project.” Included under this exclusion are certain federal loans, loan guarantees, and other forms of financial assistance.
b. Doing away with the concepts of “direct,”“indirect,” and “cumulative” effects, and instead focusing the analysis on those effects that are reasonably foreseeable and that have a reasonably close causal relationship to the proposed action. Further, CEQ clarifies that a “but for” causal relationship is not sufficient, and that the standard is analogous to proximate cause in tort law.
c. Clarifying that “reasonable alternatives” must be “technically and economically feasible” and meet the purpose and need for the proposed action. Specifically, when the agency’s action involves a non-federal applicant, the development of reasonable alternatives must consider the goals of the applicant.
Uncertainty for cumulative effects and climate change analysis: The final rule repeals the specific requirement to consider cumulative effects but allows for incorporation of such analysis if such effects are reasonably foreseeable and have a reasonably close causal relationship. Similarly, the final rule allows for incorporation of climate trends into the discussion of environmental baseline conditions (i.e., the “affected environment”), but would exclude the discussion of speculative conditions.
Additional Structure for Environmental Assessments: Historically, action agencies have followed varied practices regarding the scope and content of their EAs. While still maintaining a level of flexibility for agency implementation, the final rule encourages more standardized approaches. Specifically, agencies are directed to follow the same rules as applied to an EIS in relation to the level of data available, methodologies and scientific accuracy, and accommodation of other surveys and analysis that may be required for lead or cooperating agency permitting, or authorization determinations.
More Detailed Direction on Categorical Exclusions: The final rule includes additional direction on agencies’ use of categorical exclusions (“CEs”) as a means to avoid detailed environmental review of actions that normally do not have significant effects. In addition to clarifying that the presence of extraordinary circumstances does not necessarily preclude the application of a CE, the final rule also includes provisions that would allow federal agencies to adopt other agencies’ CEs.
Greater Role for Applicants: The final rule allows applicants to assume a greater role in the preparation of environmental documents. Specifically, it allows both EAs and EISs to be prepared by project applicants or contractors under the supervision of the agency, provided that agencies retain ultimate responsibility for the accuracy, scope, and content of the document.
Greater Roles for Tribes: CEQ makes a series of changes to its rules to further integrate Tribes into NEPA reviews by: (i) recognizing that Tribes may assume NEPA implementing responsibility under certain statutory authorities; (ii) requiring federal agencies to coordinate with affected Tribes in the development of NEPA review timelines; (iii) allowing for Tribes, with the lead agency’s agreement, to be cooperating agencies; and (iv) ensuring that federal agencies further coordinate with Tribes on the analysis of a proposed action’s potential effects on Tribal lands, resources, or areas of historic significance. In conjunction with coordinating on the potential effects of an action on Tribal resources and historic significance, the rule eliminates existing provisions that limit Tribal interests to reservations.
Public Involvement and Implications for Litigation: Throughout the rule, CEQ emphasizes the need for disclosure or public involvement—in contrast to prior focus on public participation. It requires that public comments be as specific as possible and submitted during the prescribed comment periods, providing that agencies need only respond to “substantive” comments and that comments or objections not submitted will be deemed “forfeited as unexhausted.” The final rule also establishes a rebuttable presumption that an agency has considered submitted alternatives, information, and analyses in the final EIS. Further, agencies are given more discretion in determining the need for public meetings or hearings, which, traditionally, have been a key step in the development of an EIS. The final rule also scraps the mandatory 30-day comment period on final EISs included in the proposed rule, although it retains the current 30-day waiting period between publication of notice of a final EIS and issuance of a ROD. The extent to which any of these provisions ultimately may limit judicial review will be within the purview of reviewing courts.
Information for this article came from: The National Law Review, The Federal Register, and Environmental Law & Policy Monitor.