Historic NEPA Law Faces Change

Last Thursday the Council on Environmental Quality (CEQ) proposed a major rewrite of the National Environmental Policy Act (NEPA). As summarized in the Federal Register proposed rulemaking on January 10, 2020, the CEQ is looking to update regulations for implementing NEPA procedural provisions, which haven't been overhauled since promulgation in 1978. The proposed rule aims to modernize and clarify the regulations such that more efficient, effective, and timely NEPA review may be accomplished.

Congress enacted NEPA to establish a national policy that helps ensure the environment is considered and balance is maintained when federal actions have potential to significantly impact the environment. NEPA applies to any major project involving federal funding, work performed by the federal government, or permits issued by a federal agency. Examples of projects typically subject to NEPA are highways, pipelines, power plants, and mines. These projects are carefully evaluated through an Environmental Assessment (EA) or a more comprehensive Environmental Impact Statement (EIS), which detail possible environmental impacts as well as alternatives considered during project development. The ultimate course of action for projects evaluated under NEPA is summarized by the applicable federal agency in a Record of Decision (ROD).

The proposed rulemaking aims to streamline the EIS process, which is historically drawn-out with the average time to complete an EIS and issue a ROD being over four and a half years across agencies. If promulgated, the new rule would place strict limits of one year for smaller projects and two years for larger projects.

Additionally, the proposed changes target EIS document length. Although the current rule suggests the final EIS documents do not exceed 150 pages (or 300 pages for projects of unusual scope or complexity), a study by the CEQ found that final EIS documents average over 600 pages. Only 7% of proposals have an EIS of 150 pages or less. The proposed rule contains a 75-page limit for EAs and strictly enforces the 150 or 300-page limit for an EIS, which cannot be exceeded without prior approval from a senior official of the lead agency.

Additional streamlining measures include narrowing the range of proposals that require NEPA review and eliminating the requirement to consider the cumulative impacts of projects. The proposed changes will modify what constitutes a “major federal action” to exclude privately financed projects that have minimal government funding or involvement. Regarding cumulative impacts, CEQ proposes to strike the terms “cumulative”, “direct” and “indirect” in order to focus on whether an effect is caused by the proposed action rather than on categorizing the type of effect. Per the CEQ, the proposed revisions direct agencies to consider effects that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action.

Further details regarding the rulemaking can be found in the proposed rule: Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 FR 1684. 

The CEQ is accepting comments through March 10, 2020. Comments referencing docket number CEQ-2019-003 may be submitted online, via fax, or through the mail. Public hearings will be held in Denver on February 11 and in Washington DC on February 25. Details concerning the hearings and information on additional outreach may be found at www.nepa.gov and www.whitehouse.gov/​ceq.