On October 7, 2021, the Council on Environmental Quality (CEQ), an administrative body within the Executive Office of the President, issued a proposed rule to undo reforms made to regulations under the National Environmental Policy Act (NEPA) made in the Trump Administration.
NEPA was enacted in 1970. The law requires that federal agencies “include in every recommendation or report” for “major Federal actions significantly affecting the quality of the human environment” an assessment of the likely environmental impact of such action, including potential alternatives.
In 1978, the CEQ issued regulations implementing NEPA that sought “[t]o reduce paperwork, to reduce delays, and at the same time to produce better decisions [that] further the national policy to protect and enhance the quality of the human environment.” In 1986, a rule was implemented to replace a “worst case” analysis with one focused on “reasonably foreseeable significant adverse effects,” but otherwise the rules have remained largely unchanged.
Environmental reviews have become more costly and time consuming since NEPA’s enactment. Although 1981 guidance from the CEQ suggested that the NEPA process should take no more than one year, according to a CEQ 2018 review “across the Federal Government, the average time for completion of an (Environmental Impact Statement, or EIS) and issuance of a (Record of Decision) was 4.5 years and the median was 3.5 years. One quarter of the EISs took less than 2.2 years, and one quarter of the EISs took more than 6 years.” The report further noted that “across all Federal agencies, draft EISs averaged 575 pages in total,” and “(f)or final EISs, the average document length was 661 pages, and the median document length was 447 pages.”
NEPA is also estimated to be the most litigated U.S. environmental law. Since the law applies to almost every significant federal activity that involves permitting, approvals, or the expenditure of federal funds, it has created a clear legal path for opponents of projects such as infrastructure construction, logging, mining, fishing, and others.
To scale back some of the burdens that previous guidance and caselaw had created on federal activities the Trump Administration undertook the first significant reform of NEPA rules since the initial CEQ regulations in 1978. The final rule, issued in July 2020, included a narrowing of the scope of actions potentially requiring environmental review; created a “one federal decision” standard to avoid multiple agencies engaging in duplicative reviews; added page and time limits to reviews; and gave greater ability to private party applicants to assist in the review process, subject to agency review and responsibility.
The Biden Administration is proposing to undue some of these reforms in a two-phase rulemaking process. As stated in the proposed rule, Phase 1 seeks to address three areas in the current rule:
(1) To eliminate language in the description of purpose and need for a proposed action which the current rule requires agencies to base on the goals of an applicant and the agency’s authority. The new proposal would also eliminate a conforming change made to the definition of ‘‘reasonable alternatives’’ reflecting this requirement;
(2) to remove limitations on agency NEPA procedures for implementing CEQ’s NEPA Regulations. The current rule prohibits federal agencies from creating additional NEPA requirements if those additional procedures are inconsistent with the CEQ regulations; and
(3) to return to the definitions of ‘‘effects’’ and ‘‘cumulative impacts’’ from the 1978 NEPA Regulations. The current rule defines effects as those that are “reasonably foreseeable and have a reasonably close causal relationship’’ to the proposed action; the new proposal states this language “could be read to improperly narrow the scope of environmental effects relevant to NEPA analysis.”
According to the CEQ, “Over the coming months, CEQ will also work toward proposing a set of broader “Phase 2” changes to the NEPA regulations to help ensure full and fair public involvement in the environmental review process; meet the nation’s environmental, climate change, and environmental justice challenges; provide regulatory certainty to stakeholders; and promote better decision-making consistent with NEPA’s goals and requirements.”
The new, Phase 1 proposed rule will be open for public comment until November 22, 2021. CEQ also intends to conduct two online public meetings for the proposed rule: one on Tuesday, October 19, 2021, from 1 to 4 p.m. EDT, and another on Thursday, October 21, 2021 from 5 to 8 p.m. EDT.
Interested parties are encouraged to provide their views on these proposed changes to the existing rule. Jordan Ramis attorneys stand ready to help interested parties participate in this process as well as to provide counsel on how these changes could impact business planning and decision making.
Gregory Zerzan is an attorney with Jordan Ramis PC. Zerzan has served in a wide range of roles in the U.S. government, including as Acting Assistant Secretary of the U.S. Treasury, Counsel to the House Committees on Agriculture, Financial Services, and Energy and Commerce, and as Principal Deputy Solicitor of the U.S. Department of the Interior.