The authors of this article identify the top 10 changes to the National Environmental Policy Act implementing regulations and describe the potential next steps and key takeaways for project proponents.
Fifty years after enactment of the National Environmental Policy Act ("NEPA"),1 the Trump Administration has made sweeping changes to a polarizing process that, to some, has empowered communities and improved environmental outcomes, and to others, has unnecessarily delayed (and even obstructed) development of critical infrastructure projects.
The Council on Environmental Quality ("CEQ") has finalized the overhaul of its National Environmental Policy Act implementing regulations.2 These regulations are the foundation of federal agencies' NEPA regulations, and have been the model for many NEPA-like state and local laws. Through this rulemaking, CEQ made changes to nearly every section of the regulations, which were last comprehensively updated in 1978.3
Some of the process changes will be welcome updates and improvements to the implementation of NEPA, as the desire to streamline NEPA has, to some extent, been bipartisan.4
Other changes that arguably narrow the scope of environmental review for many projects and will likely be more controversial.
Notably, CEQ has proceeded with redefining "effects" and repealing the requirement to consider cumulative impacts, despite criticism from states and environmental groups that these revisions would limit analysis of climate change.
In the short period following publication of the final rule, environmental interest groups and 22 states brought four legal challenges in Virginia, California, and New York federal district courts, alleging violations under NEPA and the federal Administrative Procedure Act ("APA"). They claim that CEQ made procedural errors by failing, for example, to comply with its own NEPA regulations, to consider the impact of the rulemaking on environmental justice communities, and to adequately respond to public comments. They also claim that the regulations are arbitrary and capricious and contrary to the statute, improperly allow agencies to apply the rule retroactively, and invalidly amend judicial review standards.
The ultimate fate of the revised NEPA regulations is uncertain, especially if there is a new administration in 2022. However, these regulations are, at least for now, the law of the land as of this writing. Here is what you need to know.
TOP 10 LIST OF CHANGES
Establish Presumptive Time Limits for Environmental Assessments ("EAs") and Environmental Impact Statements ("EISs")
CEQ finalized language requiring agencies to complete EAs in one year and EISs in two years unless the time limit is modified by a senior agency official.
Revise the Definition of Major Federal Action
Consistent with the proposed rule, CEQ adopted a revised definition of "major federal action" that gives independent meaning to the terms "major" and "significant." The definition, which triggers NEPA's applicability through the "NEPA thresholds" section of the final rule,5 also includes a listing of actions that do not qualify as "major federal actions," including decisions that are non-discretionary, do not result in final agency action, or that involve financing for which the government does not have "sufficient control and responsibility."
CEQ also expressly excludes "extraterritorial actions" from NEPA review—a matter on which CEQ had requested comment in the proposed rule.
* Partners Ethan G. Shenkman (firstname.lastname@example.org), Allison B. Rumsey (email@example.com), and Edward McTiernan (firstname.lastname@example.org) and associate Emily Orler (email@example.com) are members of Arnold & Porter Kaye Scholer LLP's Environmental Practice Group.
1 42 U.S.C. § 4321 et seq.
2 See Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg. 43304 (July 16, 2020), available at https://www.federalregister.gov/documents/2020/07/16/2020-15179/update-to-the-regulations-implementingthe-procedural-provisions-of-the-national-environmental.
3 Final Rule Redline of 1978 CEQ Regulations, available at https://www.whitehouse.gov/ wp-content/uploads/2020/01/Final-Rule-Redline-of-1978-CEQ-Regulations.pdf.
4 The Obama Administration also tried to simplify and "fast track" the NEPA process, for example, by improving transparency and encouraging federal agency coordination in infrastructure environmental reviews. See, e.g., Exec. Order No. 13,604, 76 Fed. Reg. 3821 (Jan. 18, 2011).
5 The "NEPA thresholds" section establishes a number of considerations to determine whether "NEPA applies or is otherwise fulfilled," including, for example, whether compliance with NEPA would conflict with another statue and whether another statute's requirements "serve the function of agency compliance" with NEPA.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.