Vol. 28, No. 1 ● January 27, 2020
Key Points in the Proposed NEPA Procedure Updates
NEPA provides a comprehensive framework for complying with other federal, state, and local environmental statutory requirements
On January 10, 2020, under the guidance of the Trump administration, the Council on Environmental Quality (CEQ) published a notice of proposed rulemaking proposing updates to the National Environmental Policy Act (NEPA) implementation regulations . NEPA was enacted on January 1, 1970 and was last updated when the regulations were promulgated in 1978. The goal of the 2020 proposed rule is to modernize and clarify the regulations to facilitate more efficient, effective, and timely NEPA reviews.
NEPA requires federal agencies consider the environmental impact of major federal actions and is often referred to as an “umbrella law” providing a comprehensive framework for complying with other federal, state, and local environmental statutory requirements. Changes to NEPA regulations have implications for projects where there is a federal nexus, generally including projects where there is use of federal funds, a federal action, or federal permit authorization.
The following is a brief overview of some of the proposed changes:
Definition of Major Federal Action
Proposed: Addition of two sentences to the definition of “Major Federal Action” to clarify that “non-federal projects with minimal federal funding or minimal federal involvement such that the agency cannot control the outcome” are not included.
Implication: The current interpretation of “Major Federal Action” is “actions with effects that may be major and which are potentially subject to federal control and responsibility”. Under the proposed rule, if an agency could not influence the project’s effects through its actions there would be no need for that agency to conduct a NEPA analysis. For example, this might include a very small percentage of federal funding provided only to help design an infrastructure project that is otherwise funded through private or local funds. This could limit the number of projects needing NEPA review.Definition of Effects/Impact
Proposed: Redefine “effects” or “impacts” as those “that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives”, and eliminate specific references to direct, indirect, and cumulative effects in order to focus agency time and resources on considering whether an effect is caused by the proposed action. In addition, analysis of cumulative effects would no longer be required.
Implication: Currently, NEPA analysis includes not only the potential impact of the proposed action but also the potential impact of the proposed action combined with environmental impacts of past, present, and likely future projects. There is often a lot of time and effort expended determining the scope and scale, and evaluating the effects of indirect and cumulative impacts. Under the proposed rule, agencies would only need to assess impacts tied directly to a project and not downstream, non-direct impacts that may occur (but are removed in space or time) such as climate or sea level rise impacts which are typically evaluated as cumulative impact, under the current regulations.Definition of Reasonable Alternatives
Proposed: Redefine “reasonable alternatives” as alternatives that are “technically and economically feasible, meet the purpose and need for the proposed action, and where applicable, meet the goals of the applicant”.
Implication: NEPA requires that agency environmental reviews include discussions of appropriate alternatives. The regulations do not currently define “reasonable alternatives”, but guidance states that in determining the scope of alternatives to be considered, the emphasis is on what is reasonable rather than on whether the proponent or applicant likes or is itself capable of carrying out a particular alternative. The proposed language would potentially limit the number of alternatives that would need to be considered. For example, this may preclude alternatives outside the agency’s jurisdiction because they may not be considered technically feasible.Exhaustion Requirement
Proposed: Addition of the term “exhaustion” to clarify that parties may not raise claims based on issues they did not raise during the public comment period and have 30 days after the final EIS to object to any summary of their comments.
Implication: This provision should help keep projects on schedule, as major issues should be raised early in the NEPA process.Time Limits
Proposed: Provisions to set a presumptive time limit for the preparation of environmental assessments to one year and environmental impact statements to two years. A senior agency official may approve a longer time limit in writing.
Implications: According to a White House briefing the time taken to complete an environmental impact statement is now almost five years on average, with highway projects averaging seven years. While shorter in duration, environmental assessment level reviews may also take several years. Shorter environmental review timelines would allow projects to proceed to implementation within a shorter time frame.Page Limits
Proposed: Provisions to limit the page length of environmental assessments to 75 pages (not including appendices) and environmental impact statements to 150 pages (300 pages for projects of unusual scope or complexity). A senior agency official may approve longer page limits in writing.
Implication: According to a CEQ study, the average length of environmental impact statements approaches 600 pages. Environmental assessment level reviews are also often several hundred pages. Page limits would require that reviews be more concise and may improve efficiency.
Comments and Questions
Public comments regarding this notice of proposed rulemaking can be submitted until March 10, 2020. To view the view the full document and/or submit a comment, please visit the following link.
If you have questions about NEPA or the proposed changes, please contact Bob Kerr, Zaneta Hough, or Nick Krause.