Earlier this month, the Council on Environmental Quality (CEQ) announced its final rule titled “Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act.” The changes are significant and—to put it mildly—not without controversy.
NEPA has been with us for some time. The Act was promulgated in 1970, when the environmental movement was gathering significant momentum. It essentially requires Federal agencies to evaluate the environmental effects of their actions prior to taking them, with an eye toward avoiding environmental harms. NEPA applies to many actions beyond a Federal agency taking action to build a project. For instance, NEPA applies to such diverse actions as decisions to fund construction projects with Federal funds, plans to manage and develop Federal lands, and Federal authorizations of non-Federal activities, such as licenses and permits.
Under NEPA’s regulations, there are three levels of environmental review: environmental impact statements (EISs), which represent the highest level of review; environmental assessments (EAs), which represent an intermediate level of review; and categorical exclusions (CEs), which functionally exempt actions (because of their nature) from any extended review. By CEQ’s estimate, Federal agencies issue approximately 170 final EISs and 10,000 EAs annually and apply categorical exclusions to approximately 100,000 actions annually.
While it was a revolutionary concept at the time, today over 100 countries and the states have similar environmental review legislation. New York, for instance, enacted the State Environmental Quality Review Act (SEQRA) in 1975, which similarly mandates local and state government agencies to review potential environmental impacts when considering their actions.
While NEPA has been popular, it also has been a flashpoint of contention between industry and environmentalists. President Trump, for instance, suggests that NEPA reflects a federal review process that is “outrageously slow and burdensome.” See https://www.whitehouse.gov/briefings-statements/remarks-president-trump-proposed-national-environmental-policy-act-regulations/. NEPA’s advocates counter that the Act is a check against “dangerous, rushed or poorly planned federal projects” and “a forum for citizens to engage with major federal actions that affect their health.” See https://protectnepa.org/.
In response to the President’s concerns, CEQ has revised NEPA’s regulations and the changes are significant. In the CEQ’s view, the updated regulations will “promote more efficient, effective, and timely environmental reviews by all Federal agencies” and “accelerate the environmental review and permitting processes for development of modern, resilient infrastructure, management of our Federal lands and waters, and restoration of our environment.” See https://www.whitehouse.gov/wp-content/uploads/2020/01/20200716FinalNEPA-Fact-Sheet.pdf.
CEQ offers these as the highlights of its changes to NEPA that will improve and streamline the NEPA process:
● Presumptive time limits of two years for the preparation of EISs and one year for the preparation of EAs.
● Page limits for EISs and EAs.
● Joint schedules, a single EIS, and a single record of decision (ROD), where appropriate, for EISs involving multiple Federal agencies.
● A greater role of the lead agency and senior agency officials to oversee NEPA compliance, including timely resolution of disputes to avoid delays.
● A greater role for applicants/contractors in preparing EISs with appropriate disclosure of financial or other interests and with supervision and independent evaluation by the agency.
● Permission for agencies to establish procedures to use other agencies’ CE’s and to adopt EAs and CE determinations, where appropriate.
CEQ’s changes to NEPA extend well beyond these, but these are the major highlights when it comes to attempting to streamline the NEPA process.
Predictably, not everyone is on board with CEQ’s changes. Critics and environmental advocates are concerned that the changes above and others dilute the Act and go too far. The Sierra Club, for instance, warns that under the revisions to NEPA: federal agencies can no longer evaluate the “cumulative” effects of projects—such as their impact on climate change—or how multiple projects collectively affect a community. A new refinery seeking to move into a community with several existent refineries, for example, would only be evaluated based on its own impact, not the cumulative impact of the multiple refineries.
See https://www.sierraclub.org/sierra/trumps-nepa-rollback-favors-more-pollution-and-less-community-input. Other environmental groups passionately raise similar and other concerns. A spokesperson for The Center for Biological Diversity says bluntly, “NEPA’s dismantling is a win for corruption, a win for polluters, and a win for those that profit off the destruction of our planet. Everyone else loses.”
There undoubtedly will be legal challenges over these rules. Additionally, a Biden administration almost certainly would revisit them. But for now, the new CEQ rules represent the most significant changes to NEPA in its 50 year history.