NEPA Updated Regulations: Top 10 Questions on the 2024 Changes

Introduction

I recently had the opportunity to present a National Environmental Policy Act (NEPA) annual case law summary with other environmental attorneys and NEPA experts at the National Association of Environmental Professionals (NAEP) annual conference in May 2024.

Just a few days before our gathering, new NEPA regulations were published, which sparked intense discussions among the experts present. Notably, Chair Brenda Mallory of the White House Council on Environmental Quality (CEQ) was a keynote speaker, with CEQ’s Deputy General Counsel, Amy Coyle, presenting these updates in detail. Their discussions were not only enlightening but also highlighted CEQ’s dedication to transparency in their decision-making processes.

To help those who couldn’t attend or might not have the time to read through the comprehensive 136-page Federal Register publication, this blog presents our top 10 questions and answers, offering a concise summary of the key changes to the NEPA regulations. For those who want to dive deeper, the full regulatory text is available here.

This article is co-authored by Ron Lamb, Certified Environmental Professional (CEP) Emeritus, a senior NEPA project manager and former NEPA program manager for the U.S. Marine Corps, who brings a wealth of experience and insight to our discussion. Ron attended the NAEP annual conference, contributing valuable perspectives to the overall dialogue.

1.    Has anything really changed in the NEPA regulations?

Yes, the latest updates introduce several modifications designed to shorten the time to complete a NEPA review and clarify the regulatory language, helping federal agencies to implement NEPA more effectively. Examples are:

• Definition of “Major Federal Action” Revised: Clarifies actions must be subject to substantial federal control and responsibility.
• Cumulative Impacts: Re-emphasizes the need to assess cumulative impacts in environmental reviews.
• Timeliness Objectives: Retains the 1-year deadline for completing Environmental Assessments (EAs) and 2-year deadline for Environmental Impact Statements (EISs), without strict penalties.
• Public Engagement Enhancements: Strengthens requirements for public involvement, particularly during the scoping phase. Public participation now termed “engagement” in 40 Code of Federal Regulations (CFR) 1501.9.
• Clarification of Terms: Updates definitions such as “effects,” “communities with environmental justice concerns,” and “cumulative impact” to refine the scope of reviews.
• Cooperative Agency Reports: Encourages the use of reports or studies by cooperating agencies to reduce duplication.
• Duty to Supplement: No change to the regulatory definition but continues to require updates if new significant environmental impacts are identified.
• Joint Lead Agencies: Provides clearer regulations on roles and responsibilities when multiple agencies lead NEPA reviews.
• Efficiency in Document Preparation: Encourages more concise and focused environmental documents to aid clarity and reduce unnecessary volume.
• Agency Accountability: Increased emphasis on agency accountability for meeting timelines and documenting reasons for delays.
• Removed the “Exhaustion” Requirement: Previously mandated that all concerns and alternatives must be raised early in the process, specifically during the Notice of Intent (NOI) phase, which is the initial public announcement of an EIS. This prevented new issues from being introduced later in the process, aiming to streamline reviews but potentially limiting thorough consideration and public input.

Additionally, the updates incorporate the amendments to NEPA in the Fiscal Responsibility Act of 2023 (Public Law 118–5).

2.    Can you provide examples of specific definition changes?

Key definition updates include:

• Effects: The term now specifically includes the requirement to consider the reasonable foreseeability of impacts, which sharpens the focus and scope of environmental reviews.
• Cumulative Impact: This term has been redefined to stress impacts that are significant in the context of other past, present, and reasonably foreseeable future actions despite any immediate causal connection.
• Environmental Justice and Communities with environmental justice concerns: Adds definition meaning “the just treatment and meaningful involvement of all people, regardless of income, race, color, national origin, Tribal affiliation, or disability…”

3.      When do the new regulations take effect, and do they apply to ongoing EAs or EISs?

The updated regulations take effect on July 1, 2024, and are designed to apply only to new EAs and EISs initiated after this date. This approach prevents disruption to ongoing assessments and respects the work already done under the previous regulations, ensuring a smooth transition to the new regulations without causing delays or requiring reassessments of existing projects.

4.    What does the new definition of “major federal action” entail, and how does it compare to the old definition?

The revised definition clarifies that “major federal actions” are only those with substantial federal control and responsibility. Previously, the focus was on actions potentially subject to federal control, leading to ambiguities regarding the extent of federal involvement.

In our opinion, this change eliminates the ‘small Federal handle’ issue, where minor federal funding or involvement used to trigger extensive NEPA review, and might significantly alter how the nexus to federal involvement is interpreted.

5.    How are cumulative impacts addressed in the new regulations?

While the concept of assessing cumulative impacts is not new in NEPA regulations, the recent updates have refined its definition to emphasize a more comprehensive evaluation of environmental effects. The revised definition specifies that cumulative impacts are the result of the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions. This refinement aims to enhance how federal agencies consider both direct and indirect effects of a proposed action in conjunction with other existing and foreseeable environmental disturbances.

This approach is particularly relevant given the recent increase in litigation focusing on cumulative impacts, a topic that was featured in the recent NEPA case law summary presentation, including discussion of a notable U.S. Army Corps of Engineers case that was lost due to inadequate assessment of these impacts. The goal of the updated regulation is to provide a comprehensive view of how small, individual project impacts might accumulate over time or in conjunction with other projects, leading to significant environmental changes, thereby ensuring that decision-making is well-informed and considers the broader environmental context.

While not new, the clarified focus on cumulative impacts demands more comprehensive environmental assessments. Agencies must consider the broader context of other existing or foreseeable projects, which could complicate or elongate the review process, especially in areas with multiple ongoing federal activities.

6.    Does the update change the 1-year EA completion and 2-year EIS completion deadline?

The deadlines for completing EAs (1 year) and EISs (2 years) remain unchanged in the new regulations.  However, these time frames are now emphasized as firm requirements under the Fiscal Responsibility Act amendments, which provide less leeway than the previous 2020 regulations. Previously, the 2020 regulations (40 CFR 1501.10) allowed federal agencies to set time limits appropriate to individual actions and permitted extensions if approved by a senior agency official, stating, “Federal agencies should set time limits appropriate to individual actions” and “agencies shall complete: (1) Environmental assessments within 1 year unless a senior agency official of the lead agency approves a longer period in writing and establishes a new time limit.”   Also, see “Right to Petition” below.

It will be interesting to see who the agency writes when they are going to miss their time deadline, and whether they need to notify the public.

7.    What happens if agencies fail to meet the established deadlines for EAs or EISs?

If agencies fail to meet the 1-year or 2-year deadlines for EAs or EISs, they are now required to provide a detailed written explanation for the delay. This accountability measure aims to enhance transparency and encourage timely completion, while also providing public insight into the reasons for any delays, which could range from unexpected environmental findings to procedural hurdles.

While there are no strict penalties for missing these deadlines, persistent delays might attract negative attention or pressure from oversight bodies and the public. Although the Phase 2 regulations don’t discuss it, Fiscal Responsibility Act Section 107(g)(3) included the new “Right to Petition” provision, allowing a court to review the agency’s failure to meet the applicable deadline and set a new deadline for the agency to act “as soon as practicable.” This is exemplified by the recent Signal Peak v. Haaland lawsuit over the Department of the Interior’s failure to meet the EIS timeline.

8.    Are there any significant changes related to public participation?

Yes, the updated regulations significantly enhance public participation mechanisms to ensure more robust, inclusive, and meaningful engagement. These enhancements include requirements for agencies to provide more accessible public notices, consider the engagement needs of the affected communities, and to extend comment periods where significant public interest is evident or where complex environmental issues are involved.

For example, agencies are now encouraged to use varied communication platforms, including social media and virtual public meetings, to reach a broader audience. Additionally, there is a new provision for agencies to offer early public meetings at the onset of major projects to discuss potential environmental impacts and gather early community feedback. This proactive approach aims to involve the public from the earliest stages of planning, ensuring that community insights and concerns are integrated into the environmental review process, thereby fostering more informed and community-responsive project development. Moreover, there is a new requirement for agencies to designate a Chief Public Engagement Officer to be responsible for facilitating community engagement in environmental reviews across the agency (40 CFR 1507.4(a)). These changes aim to democratize the NEPA process, ensuring that it is not only transparent but also genuinely responsive to public input.

With strengthened requirements for public participation, federal agencies might face more extensive public scrutiny and potentially more comments, which could slow down the NEPA process. This means needing more robust strategies for public engagement and comment management.

9.    How do the new regulations address the integration of climate change considerations into NEPA reviews?

The updated NEPA regulations emphasize the integration of climate change considerations into the environmental review process, reflecting an increasingly important aspect of federal environmental assessments. Agencies are directed to evaluate potential climate impacts “where applicable” and to consider how adaptations might mitigate these impacts. This includes assessing both the project’s contribution to climate change through greenhouse gas emissions and its vulnerability to climate change impacts like increased flooding, wildfires, or sea-level rise. This proactive approach aims to ensure that long-term sustainability and resilience are factored into the planning and decision-making processes, helping agencies to address the critical challenge of climate change effectively. This update facilitates more robust environmental assessments by providing agencies with the guidance to evaluate climate-related factors comprehensively, ensuring that federal projects not only comply with environmental standards but also contribute to broader sustainability goals.

The regulations require more thorough consideration of climate change impacts and greenhouse gas emissions. For federal projects, this means potential additional studies and documentation to assess and mitigate climate-related impacts. This could extend timelines or necessitate changes in project scope or design.

The “where applicable” language was added to several subsections of 40 CFR 1502.16 to make clear that not all proposed actions will have such effects, giving agencies the ability to scope the issue out of a NEPA review if they decide it would not be “applicable.” However, the language in the Federal Register notice also states that CEQ is ensuring climate change and other environmental issues are fully accounted for in agencies’ decisionmaking processes, raising questions about how agencies will determine when consideration of GHG emissions and climate change would not be applicable. This ambiguity may lead to legal challenges regarding this provision.

10. How does the updated NEPA regulation enhance engagement with Tribal Nations?

The updated NEPA regulations make significant strides in enhancing engagement with Tribal Nations through several key measures:

• Strengthened Tribal Consultation Requirements: The regulations emphasize early and meaningful government-to-government consultations with Tribal Nations, ensuring that their concerns and insights are considered right from the planning stages of any project.
• Recognition of Tribal Contributions: There is a greater acknowledgment of the value of traditional ecological knowledge and data provided by Tribal Nations. This integration respects and utilizes indigenous knowledge in environmental assessments and impact statements.
• Formal Inclusion as Cooperative Agencies: Tribal Nations can now be included as cooperative agencies when they have special expertise or a jurisdictional interest. This inclusion provides Tribal Nations a more formal and influential role in the NEPA review process, allowing them to contribute more effectively to environmental decision-making.

Note that federal agencies have until July 1, 2025 (12 months) to update their NEPA procedures.

In conclusion, the recent updates to NEPA regulations mark a significant step forward in modernizing the environmental review process. These changes aim to streamline assessments, enhance public participation, and integrate critical considerations such as climate change and cumulative impacts. By incorporating these updates, federal agencies are better equipped to execute their responsibilities transparently and efficiently, ensuring that environmental reviews are both thorough and timely. As we move forward, continued dialogue and collaboration among stakeholders will be essential to successfully navigate and implement these new regulatory requirements.

About the authors:

Melanie Hernandez is a licensed attorney and the co-founder and Vice President of Scout, an environmental and engineering company headquartered in San Diego, CA. With over 20 years in NEPA and environmental law, she leads as a senior NEPA project manager, serving clients like the Navy, Marine Corps, Air Force, Army, and the Coast Guard. Her expertise includes managing multidisciplinary NEPA teams for projects involving new military systems, construction, and public land access. Her responsibilities also extend to developing training on environmental laws including the Clean Air Act, Clean Water Act, National Historic Preservation Act, Executive Order 12114, and more. Prior to Scout, she led some of the most complex Environmental Impact Statements for the Marine Corps in the Pacific and Japan, where she lived for five years. Melanie holds a B.S. from Andrews University and a J.D. from George Washington University Law School, and is admitted to the bar in Maryland and D.C.

Ron Lamb, CEP Emeritus, is a senior NEPA project manager and former NEPA program manager for the U.S. Marine Corps (retired 2022). At his retirement was awarded the Superior Civilian Service Award—the highest honorary award the Commandant of the Marine Corps may bestow on a civilian employee. In 2023 Ron was awarded the Dr. Richard Kramer Memorial Award by the Academy of Board Certified Environmental Professionals (ABCEP). In 2016-2017 Ron was detailed to the Council on Environmental Quality (CEQ) where he served as the Deputy Associate Director for NEPA to support administration transition and NEPA guidance and procedures. In 2014 he was detailed to the Deputy Assistant Secretary of the Navy for Environment (DASN-E) to serve as Acting Director for Environmental Planning and Terrestrial Ecology. Ron was a Vice President at HDR|e2M where his clients included the Coast Guard, Customs and Border Protection, Air Force, Bureau of Land Management, General Services Administration, National Park Service, U.S. Army Corps of Engineers, and NASA. Ron has been an elected member of the NAEP Board of Directors and led the NEPA Working Group. Ron holds an M.S. in Environmental Science from Johns Hopkins University and his Certificate in NEPA from the Duke University Nicholas School of the Environment.  He is a guest author for Scout’s monthly blog.