Legal Alerts Jan 30, 2020

Proposed NEPA Regulation Overhaul: Next Steps and What Matters for Public Agencies

Public Comments Due March 10

Proposed NEPA Regulation Overhaul: Next Steps and What Matters for Public Agencies

The White House Council on Environmental Quality issued a proposal to significantly overhaul, for the first time in 40 years, the regulations for implementing the National Environmental Policy Act. For public agencies, the proposal, issued Jan. 10, holds promise to streamline federal environmental reviews of projects with a federal funding or permitting role. But it also could reduce affected communities’ ability to ensure federal agencies disclose and consider the full range of concerns for controversial projects.
 
If adopted and implemented, the proposal would:

  • reduce the number of projects subject to NEPA review,
  • increase the use of Categorical Exclusions to exempt actions from NEPA analysis requirements,
  • scale back the scope and types of project effects that must be analyzed under NEPA,
  • narrow the range of project alternatives that must be considered in a NEPA analysis,
  • set presumptive time limits,
  • make several process changes intended to expedite reviews and strengthen the position of project proponents and
  • seek to curtail legal remedies for NEPA violations.
 

Public comments on the proposal are due by March 10. The Council on Environmental Quality also scheduled public hearings on the proposal on Feb. 11 in Denver, Colo. and on Feb. 25 in Washington, D.C. Members of Congress have requested that the Council extend the comment period.
 
For public agencies, the six most significant changes in the proposal are:

  • Projects and Actions Subject to NEPA Review: The proposal directs agencies to designate types of actions that are not subject to NEPA following a new NEPA “threshold applicability analysis.” Under this analysis, NEPA requirements would not apply to actions if:
 
  1. they are not “major” federal actions that are subject to federal control and responsibility,
  2. they are non-discretionary, in whole or in part,
  3. they are expressly exempt from NEPA under another statute,
  4. following NEPA requirements would conflict with another statute or
  5. following NEPA requirements would be “inconsistent with Congressional intent” expressed in another statute.
 

Federal agencies can make these threshold determinations categorically in their NEPA implementing regulations, or individually. The proposal also seeks comment on whether to create a threshold federal dollar amount or percentage to determine which projects are major federal actions subject to NEPA. In addition, it seeks comment on whether to exclude from NEPA non-federal projects that have a “small handle” federal role, such as a federal permit for small portions of an infrastructure project. And it seeks comments on whether the regulations should state that NEPA does not apply to actions outside the United States.

  • Expanded Use of Categorical Exclusions: Under the existing NEPA regulations, agencies can designate types of actions that, absent extraordinary circumstances, will be exempt from NEPA analyses because they do not have significant effects, either “individually or cumulatively.” The proposed revisions would allow these categorical exclusions to cover actions that may have significant cumulative effects on the environment, so long as the action’s individual effects are not significant in normal circumstances. The revisions also state that agencies shall prepare Environmental Assessments or Environmental Impact Statements only for actions that “cannot” be categorically excluded.
  • Narrower Range of Project Impacts: The proposal’s most substantial and controversial changes are to the scope of “effects” that should be considered in NEPA reviews. Under the existing NEPA regulations and guidance, agencies are required to consider “direct,” “indirect” and “cumulative” effects that are reasonably foreseeable. The proposed revisions would eliminate these categories of effects, and state that analysis of cumulative effects is not required. Instead, effects must only be considered if they are both reasonably foreseeable and they “have a reasonably close causal relationship” to the proposed action. Effects need not be considered if an agency has no authority to prevent them due to its limited statutory authority. Effects would not be considered significant if they are remote in time, geographically remote or the result of a lengthy causal chain. In addition, the proposal requests comment on whether CEQ should expressly state that consideration of indirect effects is not required under NEPA.
  • Narrower Range of Alternatives: The proposed regulation provides a new definition of “reasonable alternatives” that should be considered in NEPA reviews, and clarifies that they must be technically and economically feasible and meet the proposed action’s purpose and need. It also clarifies that, when an action involves a non-federal applicant, a reasonable alternative must consider the applicant’s goals. A major change to the scope of alternatives is a new limitation based on individual agency authorities. The existing NEPA regulations state that alternatives “are the heart of the environmental impact statement,” and require agencies to consider “reasonable alternatives not within the jurisdiction of the lead agency.” In contrast, the proposal’s preamble discussion states that it would preclude alternatives outside an agency’s jurisdiction because they would not be technically feasible due to a lack of statutory authority to implement them. Therefore for some actions the range of alternatives can be limited to the proposed action and a no-action alternative. The proposal also requests comment on whether CEQ should establish a presumptive maximum number of alternatives in environmental reviews.
  • Presumptive Time Limits: The proposal would establish presumptive time limits of 1 year for an environmental assessment and 2 years for an environmental impact statement, unless a “senior agency official” approves a longer time period in writing.
  • Other Process Changes and Updates: The proposed regulations also include several process updates to reflect changes in technology and practice, and a few clarifications that would acknowledge and codify the role of state, tribal and local agencies in NEPA reviews. For example, some updates would clarify that federal agencies are authorized to cooperate with state, tribal and local agencies and must do so to reduce duplication. Other changes expressly allow NEPA reviews to incorporate a wider range of pre-existing environmental analyses.
  • Legal Remedies: The proposed revisions include new language stating that the regulations do not create a cause or right of action, and observing that NEPA’s text contains no cause or right of action. It also states that the regulations “create no presumption that violation of NEPA is a basis for injunctive relief or for a finding of irreparable harm.” Instead, it asserts that harms from failure to comply with NEPA can be remedied through compliance with NEPA’s procedural requirements as interpreted in the regulations.
 

If you have any questions about the proposed NEPA regulations, how they may impact your organization or if your agency is interested in drafting and submitting comments, please contact the attorney authors of this Legal Alert listed to the right in the firm’s Environmental Law & Natural Resources practice group, or your BB&K attorney.
 
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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