Enforcement and Inspection

Expect More Stringent NEPA Reviews

The White House Council on Environmental Quality (CEQ) on October 6 announced it will “restore three core procedural provisions of the National Environmental Policy Act (NEPA) regulations to provide communities and decision makers with more complete information about proposed projects, their environmental and public health impacts, and their alternatives.”

What is NEPA?

NEPA was signed into law by President Richard Nixon on January 1, 1970. It was created to establish a national environmental policy, and its enactment also provided for the creation of the CEQ. The act is referred to as the “Magna Carta” of environmental laws, as it was the first major U.S. environmental law.

“Section 101 of NEPA sets forth a national policy ‘to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans,’” according to the NEPA website. “42 U.S.C. 4331(a). Section 102 of NEPA establishes procedural requirements, applying that national policy to proposals for major Federal actions significantly affecting the quality of the human environment by requiring Federal agencies to prepare a detailed statement on: (1) the environmental impact of the proposed action; (2) any adverse effects that cannot be avoided; (3) alternatives to the proposed action; (4) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity; and (5) any irreversible and irretrievable commitments of resources that would be involved in the proposed action.

“NEPA ensures agencies consider the significant environmental consequences of their proposed actions and inform the public about their decision making. Countries and non-governmental organizations all over the globe have created their own environmental impact assessment programs, modeled upon NEPA, making NEPA an international catalyst in the field of environmental protection.”

2020 NEPA revisions

In response to President Donald Trump’s Executive Order (EO) 13807, on July 16, 2020, NEPA received its first significant updates in 40 years, which included the following 10 significant changes, according to law firm Arnold & Porter:

  1. Required agencies to complete Environmental Assessments (EAs) in one year and Environmental Impact Statements (EISs) in two years.
  2. Redefined the term “major federal action” and included a long list of actions that do not qualify as “major federal actions” that, therefore, do not trigger NEPA regulations.
  3. Redefined the range of reasonable alternatives to clarify that agencies only consider alternatives that are “technically or economically feasible.” The CEQ directed agencies to “limit their consideration to a reasonable number of alternatives.”
  4. Narrowly restricted the scope of effects, specifying agencies “should not go beyond” the definition of “effects” in the final rule, which severely limited the discretion of federal agencies to consider any broader environmental effects.
  5. Encouraged joint documents from federal agencies requiring, to the “extent practicable,” the preparation of “single” EISs and EAs and “joint” decision documents.
  6. Provided agencies with greater flexibility to apply categorical exclusions and the ability to utilize categorical exclusions created by other federal agencies.
  7. Allowed applicants to proceed with certain activities such as acquiring land interests during the NEPA review process while requiring a disclosure statement to identify the conflicts of interest.  Also allowed applicants to create their own EISs under agency direction.
  8. Narrowed the public comment period and removed the requirement that comment periods be limited to only 30 days. Comments that were not submitted in a timely manner were “considered unexhausted and forfeited,” which meant they could not be used as legal arguments in subsequent court cases.
  9. “[T]he final rule requires a certification statement to be included in the Record of Decision, which establishes a ‘presumption’—rather than a ‘conclusive presumption,’ as proposed—that the agency has considered all submitted alternatives, information and analyses in the final EIS,” states Arnold & Porter’s analysis.
  10. Required federal agencies to update their NEPA regulations within 1 year of the CEQ’s publication of the new rules, prohibited agencies from requiring any additional procedures outside the CEQ regulations, and removed the “functional equivalent” test.

According to the proposed rulemaking, “In the months that followed the issuance of the 2020 NEPA Regulations, five lawsuits were filed challenging the 2020 Rule … on a variety of grounds, including under the Administrative Procedure Act (APA), NEPA, and the Endangered Species Act, contending that the rule exceeded CEQ’s authority and that the related rulemaking process was procedurally and substantively defective. In response to CEQ and joint motions, the district courts have issued temporary stays in each of these cases, except for Wild Virginia v. Council on Environmental Quality, which the district court dismissed without prejudice on June 21, 2021, and is currently on appeal to the U.S. Court of Appeals for the Fourth Circuit.”

Proposed 2021 NEPA rulemaking

The NEPA updates propose the following changes:

  1. “Restore the requirement that federal agencies evaluate all the relevant environmental impacts of the decisions they are making. This proposed change would make clear that agencies must consider the ‘direct,’ ‘indirect,’ and ‘cumulative’ impacts of a proposed decision, including by evaluating a full range of climate change impacts and assessing the consequences of releasing additional pollution in communities that are already overburdened by polluted air or dirty water.
  2. Restore the full authority of agencies to work with communities to develop and analyze alternative approaches that could minimize environmental and public health costs. This proposed change would give agencies the flexibility to determine the ‘purpose and need’ of a proposed project based on a variety of factors, and to work with project proponents and communities to mitigate or avoid environmental harms by analyzing common sense alternatives. The 2020 NEPA rule limited federal agencies’ ability to develop and consider alternative designs or approaches that do not fully align with the stated goals of the project’s sponsor, often a private company.
  3. Establish CEQ’s NEPA regulations as a floor, rather than a ceiling, for the environmental review standards that federal agencies should be meeting. This proposal would restore the ability of Federal agencies to tailor their NEPA procedures, consistent with the CEQ NEPA regulations, to help meet the specific needs of their agencies, the public, and stakeholders.”

These changes are Phase 1. The CEQ plans to propose additional broader Phase 2 NEPA regulations changes in the coming months.