On Jan. 9, following a White House press conference, the Council on Environmental Quality (CEQ) released proposed revisions to National Environmental Policy Act (NEPA) regulations. The proposed rule seeks to rein in NEPA litigation and expedite environmental reviews.
A Fact Sheet issued by the White House is available online. The proposed rulemaking has been published in the Federal Register. Comments on the proposal are due March 10, 2020. At this time the agency has not set a target date for finalizing the rule after the notice and comment period.
Key provisions of the proposal that will impact NEPA review timelines and the scope of environmental reviews conducted include:
One Federal Decision
The proposal requires joint schedules, a single environmental impact statement (EIS), and in certain instances, a single record of decision (ROD) for EISs involving multiple agencies. This proposal tracks with the 2017 Executive Order 13807: Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects, which required agencies to process environmental reviews as One Federal Decision.
More Categorical Exclusions and FONSIs
The proposed rule emphasizes more frequent uses of categorical exclusions and findings of no significant impact (FONSI), where appropriate, to reduce paperwork and the necessity for NEPA reviews. Categorical exclusions are actions determined by agencies to be exempt from additional reviews because the category of activity has been previously studied and determined to have no significant impact. Categorical exclusions are typically identified in agency-specific NEPA procedures. A FONSI is a project-specific determination that a certain proposed federal action will not have significant harmful impact on the human environment made following an environmental assessment (EA), which is not as detailed a study as an EIS.
The proposed rule allows for a more robust scoping process and earlier public input to narrow the analysis of issues to be considered in the final NEPA document.
Strict Page and Time Limits
The proposed rule sets a one-year time limit for EAs unless otherwise approved by a lead agency senior official. The proposal also sets a two-year timeline for EISs unless otherwise approved. Under the proposal, an EIS should be no more than 300 pages unless approved in writing by a senior official.
Expanded Use of Tiering
The rule also encourages agencies to apply the concept of tiering, which allows for previous EAs and EISs to be incorporated by reference in newly prepared NEPA review documents. The new rule eliminates language that was more restrictive of the use of tiering.
Incorporation by Reference
The proposed rule would allow for documentation from state, tribal and local governments to be used in environmental reviews rather than requiring the federal government to generate their own analysis where one has already been completed.
The preparation of NEPA documents typically requires the exploration of alternative actions to the action proposed. Under the proposed rule, reasonable alternatives presented in a NEPA document must be technically and economically feasible.
Referrals to CEQ
Under the proposed rule, interagency disagreements over the economic costs of delaying or impeding agency decisions during a NEPA review would provide a basis for referral to CEQ for dispute resolution. The current rule does not list economic cost considerations as a basis for an agency referral to CEQ. Public meetings and hearings during this referral process are eliminated.
Scope of Environmental Considerations
The proposed rule also states that environmental effects must be “reasonably foreseeable” and “have a reasonably close causal relationship” to the proposed action. Further, the proposed rule provides that analysis of cumulative effects is not required under NEPA. This provision is intended to narrow the scope of NEPA reviews. This change addresses recent federal judicial decisions that interpret NEPA to require analysis of the cumulative impact of certain major federal actions—such as onshore lease sales—on climate change.
Public Comment to Preserve a Claim
The proposal requires that to preserve issues or objections raised in comments to a NEPA environmental review, comments must be submitted within the comment period provided and be specific as possible. A summary of these comments will then be incorporated in a final EIS. This provision is intended to limit NEPA litigation involving objections not raised during the public comment period.
This document is intended to provide you with general information regarding proposed NEPA regulations. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.