More NEPA Regulation Changes? Same as It Ever Was (or if you prefer, Back to the Future)!

It has been about six months since our last blog postulating on potential changes to the National Environmental Policy Act (NEPA) regulations. And now I’m back with another update based on veracity! After more than 40 years of stability in the NEPA regulations, Council on Environmental Quality (CEQ) has proposed to make more changes. In this blog I will highlight CEQ’s proposed amendments to the 2020 NEPA regulations and what they might mean for NEPA practitioners. A teaser – we could be returning to the way things were before 2020…

Talking Heads

On October 7, 2021, CEQ published their Phase I Notice of Proposed Rulemaking here, which identified a narrow set of proposed changes to generally restore regulatory provisions that were in effect for decades before the 2020 amendments. CEQ’s proposed changes aim to better align the NEPA regulations with CEQ and agency expertise and NEPA’s statutory goals and purpose to promote sound decisions informed by science.

The language in the summary of the proposal states: “CEQ proposes these changes in order to better align the provisions with CEQ’s extensive experience implementing NEPA….including making decisions informed by science, and case law interpreting NEPA’s requirements.” I read this as CEQ basically saying, in the name of science, in recognition of case law, and for goodness sake, our decades of experience fostering excellent NEPA, we’re taking back control of the regulations!! So with that, here’s what CEQ is proposing and what it may mean for NEPA practitioners.

CEQ proposes to amend these provisions by generally reverting to the language from the 1978 NEPA regulations that were in effect for more than 40 years, subject to minor revisions for clarity. In proposing to revert to language in the 1978 regulations, CEQ addresses issues similar or identical to those the public and federal agencies recently had the opportunity to consider and comment on during the rulemaking for the 2020 NEPA regulations, which should facilitate an expeditious Phase 1 rulemaking.

The following graphic presents a timeline of the major NEPA regulatory events.

Back to the Future

Embrace your inner Doc or Marty McFly (from Back to the Future) and get a load of this summary of the proposed revisions and what they may mean to you.

1. Proposed Changes

CEQ proposes making the following three major changes:

1. Eliminate language in the description of purpose and need for a proposed action when it is an agency’s statutory duty to review applications for authorization and make a conforming edit to the definition of “reasonable alternatives”;
2. Remove limitations on agency NEPA procedures for implementing CEQ’s NEPA regulations; and
3. Return to the definitions of “effects” in the prior longstanding 1978 NEPA regulations.

CEQ proposes to amend these provisions by generally reverting to the language from the 1978 NEPA regulations that were in effect for more than 40 years, subject to minor revisions for clarity. In proposing to revert to language in the 1978 regulations, CEQ addresses issues similar or identical to those the public and federal agencies recently had the opportunity to consider and comment on during the rulemaking for the 2020 NEPA regulations.

2. What Does This Mean for Me? Should I Grab My Skateboard?

• Purpose and Need: The proposed change would eliminate the 2020 added language and restore agencies’ flexibility to develop and analyze project alternatives beyond the objectives of the project sponsor. This means more flexibility for how agencies craft their purpose and need statements.
• Remove Limitations: Federal agencies would be able to revise their NEPA regulations according to their needs and would not be limited to the CEQ/NEPA regulations as a ceiling; but rather as a floor.

As a preliminary step, CEQ issued an interim final rule on June 29, 2021, amending the requirement in 40 CFR 1507.3(b) for agencies to propose changes to their existing NEPA supplemental procedures by September 14, 2021, in order to make their procedures consistent with the 2020 NEPA regulations. CEQ extended the date by two years to avoid having agencies propose changes to their implementing procedures, and on a tight deadline to conform to a rule that is undergoing extensive review and will likely change in the near future.

Many federal agencies continued to follow their own internal NEPA regulations after the 2020 NEPA changes. Their patience proved prescient, as per the above, agencies will now have until September 14, 2023 to propose changes to the existing NEPA procedures.

• Restoring “Effect” Definitions: One of the biggest concerns with the 2020 revisions was the elimination of the definition of cumulative effects and an adjustment of what “direct” and “indirect” effects consist of. We are likely to see these definitions returned. In addition, we anticipate seeing an emphasis on considering and analyzing potential impacts to environmental justice and climate change. Given how pervasive these two concerns are now in the nation (and world), it makes sense to see added emphasis in describing and analyzing these concerns and their potential impacts.

3. What Likely Won’t Change

The biggest takeaway is that the proposed changes are quite narrow. Much of the existing regulations will not change, such as:

• Continued time limits for EAs (1 year to complete) and EISs (2 years to complete).
• Document page limits and emphasis on focused NEPA.

In short, future NEPA documents are likely to return to some past methods we performed!

Provide Your Input

CEQ is accepting comments on the proposed rulemaking through November 22, 2021. You can review the proposed rulemaking and submit your comments by following the instructions here.

Next Steps

In Phase 2 – coming soon (Spring 2022?) to a blog near you – CEQ intends to issue a second proposed rulemaking to more broadly revisit the 2020 NEPA Regulations and propose further revisions to ensure that the NEPA process provides for efficient and effective environmental reviews that are consistent with the statute’s text and purpose; provides regulatory certainty to federal agencies; promotes better decision-making consistent with NEPA’s statutory requirements; and meets environmental, climate change, and environmental justice objectives.

Conclusion

CEQ is proposing a narrow set of changes to the 2020 NEPA regulations to enhance clarity on NEPA implementation, to better define NEPA’s statutory requirements and purposes, to ensure that federal decisions are guided by science, to better protect and enhance the quality of the human environment, and to provide full and fair processes that inform the public about the environmental effects of government actions and enable public participation. As a NEPA practitioner and planner who relies on a solid baseline, hopefully, the final changes will henceforth persist through future political changes and give us a stable regulatory basis for our future NEPA analyses.

We will keep you informed of developments and what it means for you and your NEPA compliance! Now go forth and practice streamlined and exceptional NEPA to foster informed decision-making – and if we can assist you in doing so, please reach out! Contact me at ryan.pingree@scoutenv.com.