EHS Administration, Regulatory Developments

NEPA Rule Resurrected

On April 20, 2022, the White House Council on Environmental Quality (CEQ) published a final rule in the Federal Register restoring the National Environmental Policy Act (NEPA) provisions requiring detailed environmental reviews of infrastructure projects to include climate change-related impacts.

The rule, which goes into effect May 20, 2022, will impact projects like pipelines, oil wells, and interstate construction.

NEPA reviews were a long-standing requirement until they were overhauled during the Trump administration to fast-track infrastructure projects, NPR says.

“Restoring these basic community safeguards will provide regulatory certainty, reduce conflict, and help ensure that projects get built right the first time,” said CEQ Chair Brenda Mallory in a White House press release. “Patching these holes in the environmental review process will help projects get built faster, be more resilient, and provide greater benefits– to people who live nearby.”

This rulemaking is Phase 1 of a two-step process to reform and modernize NEPA regulations.

The final rule implements three changes to the 2020 NEPA regulations:

  1. “Restores the requirement that federal agencies evaluate all the relevant environmental impacts of the decisions they are making. This proposed change ensures that agencies will consider the ‘direct,’ ‘indirect,’ and ‘cumulative’ impacts of a proposed action, including by fully evaluating climate change impacts and assessing the consequences of releasing additional pollution in communities that are already overburdened by polluted air or dirty water. This has been the practice for decades and it ensures that decisions are not held up in court because of a failure to consider these impacts.
  2. “Restores 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. “Establishes CEQ’s NEPA regulations as a floor, rather than a ceiling, for the environmental review standards that federal agencies should be meeting.  This proposal restores 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.”

Phase 2 plans include improving the NEPA review process to better achieve environmental justice and confront climate change impacts. Additional planned changes include more public involvement, providing “regulatory certainty to stakeholders,” and promoting “better decision-making consistent with NEPA’s goals and requirements,” according to the White House press release.

Although environmental groups are pleased with the NEPA reinstatement, business groups have been critical, stating the reviews will significantly slow down planned projects, adds NPR.

“Important projects that address critical issues like improving access to public transit, adding more clean energy to the grid and expanding broadband access are languishing due to continued delays and that must change,” says Chad Whiteman, vice president for environment and regulatory affairs for the U.S. Chamber of Commerce, in the NPR article.

“Arkansas Rep. Bruce Westerman, the top Republican on the House Natural Resources Committee, said the White House action would ‘weaponize NEPA’ by making it harder to navigate and more bureaucratic,” NPR continues. “At a time when we should be coalescing around bipartisan ways to lower gas prices, tame skyrocketing inflation and fix the supply chain crisis, President Biden is unfortunately reinstating archaic NEPA regulations that will only result in delays and red tape and feed activist litigation,” Westerman says.

NEPA was first enacted by Congress in 1969.