On January 9, 2020, the Council on Environmental Quality (CEQ) announced a notice of proposed rulemaking titled “Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act” (NEPA). The CEQ recently concluded the public comment period for the proposed rule on March 10. The proposed rule will apply to any NEPA process begun after the rule becomes effective; however, the proposed rule also gives agencies discretion to apply the new rules to ongoing NEPA reviews.
According to the CEQ, “[t]he proposed rule seeks to reduce unnecessary paperwork and delays, and to promote better decision-making consistent with NEPA’s statutory requirements.” To that end, the proposed rule makes several categories of changes.
Clarifying applicability and scope of NEPA review. Some of the changes affect the threshold question of NEPA’s application to a project, while others may impact the scope of the NEPA review. Notably, the proposed rule clarifies that “major federal actions” do not include non-discretionary decisions and non-federal projects (i.e., those with minimal federal funding or involvement). Other clarifying changes go to the “effects” with which NEPA is concerned; the proposed rule states that analysis of cumulative effects is not required under NEPA. It also simplifies the definition of environmental “effects” and clarifies that those effects must be “reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives.”
Clarifying public comment procedures. The proposed rule also affects NEPA’s public comment procedures. First, it requires earlier solicitation of public input. Second, it instructs that public comments should explain why the issue raised is significant to the consideration of potential environmental impacts and alternatives. And finally, it directs that comments “should reference [the] corresponding section or page number of the draft environmental impact statement, propose specific changes to those parts,” and “include or describe the data sources and methodologies supporting the proposed changes.”
Changes to the NEPA process. The proposed rule includes changes that affect the NEPA process, as well. It establishes presumptive time limits of two years for completion of an environmental impact statement (EIS) and one year for completion of an environmental assessment (EA). It also establishes presumptive page limits of 75 pages for an EA and 150 pages for an EIS (300 pages in unusually complex cases). Additionally, the proposed rule addresses projects involving multiple agencies by requiring joint schedules, a single EIS, and a single record of decision (where appropriate). The proposed rule would also require lead agencies to set milestones for all environmental reviews and, where it anticipates missing a milestone, notify appropriate officials at all other responsible agencies to promote timely resolution.
If you have any questions concerning the new rulemaking and how this could affect your business, please contact a member of Warner’s Resources, Energy and Environment Practice Group.