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Updated NEPA Regulations Issued, Likely to be Challenged

July 17, 2020

The White House Council on Environmental Quality (CEQ)  this week finalized updates to the regulations under the National Environmental Policy Act (NEPA ). The Trump administration has made NEPA reform a centerpiece of its environmental policy, and committed to revising the regulations to ease the regulatory burden on large infrastructure projects. Environmental groups have criticized the changes since they were first proposed by the administration in January of 2020, in part because of the perception that the reduced review period will deprive individuals most likely to be adversely impacted by such projects of their voice in the process.

NEPA was signed into law by President Richard Nixon on January 1, 1970, and the regulations implementing NEPA were promulgated by CEQ in 1978. In 1986, CEQ made the only significant revision to the NEPA regulations to date. NEPA was intended to set national environmental policy and to “create and maintain conditions under which man and nature can exist in productive harmony[.]” Among other things NEPA requires, it mandates that federal agencies consider and document (1) the environmental impact of any proposed action, (2) any unavoidable adverse environmental impacts from that action, and (3) what alternatives, if any, may exist to a proposed action. NEPA does not dictate decision making outcomes, merely the process by which those decisions should be made when environmental impacts are likely. Three levels of review are possible under NEPA – categorical exclusions (“CEs”), under which specific types of actions are not required to undergo further review, environmental assessments (“EAs”), and environmental impact statements (“EISs”), the most comprehensive level of review. For major federal infrastructure projects, this process inevitably requires the development of an EIS. In guidance issued in 1981, CEQ predicted the majority of EISs would be completed by federal agencies within 12 months. In a recent review, CEQ found the average time for completion of an EIS and issuance of a record of decision for a federal action is four and a half years, with Federal Highway Administration projects lagging at an average of over seven years from inception to record of decision. EISs, which were intended to be concise documents, have also ballooned over the decades to average many hundreds of pages.

The revised regulations make a number of significant changes to NEPA review. Among the changes, the amendments provide for presumptive time limits on the EA and EIS processes (one year and two years, respectively). They also expand the use of CEs, allowing agencies to effectively “borrow” one another’s CE determinations. Additionally, CEQ revised the definition of “effects” that must be considered under NEPA and deleted references to “direct,” “indirect,” and “cumulative” effects. Under the revised definition, for an effect to be considered it must be “reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives[.]”

Environmental interest groups have been strongly critical of the elimination of cumulative effect consideration, arguing that it effectively codifies a policy of ignoring climate change. Many industry groups on the other hand have praised the final rule, saying that NEPA was never intended to be a tool to delay worthwhile projects for years or decades, and that the revisions return NEPA to its original intent. The final rule is subject to congressional review, and has an effective date of September 14, 2020. Numerous legal challenges are anticipated.  

If you have any questions or would like more information, please contact Michael Traynham or your regular Nexsen Pruet attorney.

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