The Council on Environmental Quality (“CEQ”), the federal agency responsible for administering the National Environmental Policy Act (“NEPA”), has released the draft copy of a series of proposed regulatory revisions intended to revise changes made to the NEPA regulations during the Trump administration. Additionally, the proposed rule would update existing regulatory language to reflect statutory amendments made to NEPA earlier this year.
Background
National Environmental Policy Act
NEPA was signed into law on January 1, 1970, following increased public concern for the environment that had developed during the 1960s. The stated purpose of NEPA is to “declare a national policy which will encourage productive and enjoyable harmony between man and his environment[.]” 42 U.S.C. § 4321. To further that policy, NEPA requires all federal agencies to examine the environmental impacts of their actions prior to carrying them out. For any federal action that is expected to “significantly affect[t] the quality of the human environment,” NEPA directs the federal agency carrying out the action to issue a detailed written statement analyzing the potential environmental impacts. 42 U.S.C. § 4332(2)(C). Known as Environmental Impact Statements (“EIS”), these documents must include information on: the environmental impact of the proposed action; any adverse environmental effects which cannot be avoided if the proposed action is implemented; alternatives to the proposed action; the relationship between local short-term uses of the environment and long-term productivity; and any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.” 42 U.S.C. § 4332(2)(C).
Drafting an EIS is the final step in what NEPA refers to as the environmental review process, otherwise known as the NEPA process. To satisfy the NEPA process, a federal agency must begin by determining whether a proposed action is subject to NEPA review. In general, a federal agency must go through the NEPA process for any “major federal action” it would like to carry out. 42 U.S.C. § 4332(2)(C). For the purposes of NEPA, a major federal action refers to any activity or decision that is subject to the federal agency’s control, including actions that are “entirely or partly financed, assisted, conducted, regulated, or approved by Federal agencies[.]” 40 C.F.R. § 1508.1(q). Once an agency has determined that its proposed action is a major federal action that requires NEPA analysis, its next step is to determine whether the action falls under a Categorical Exemption (“CE”). A CE is a type of action that the federal agency has already determined does not have a significant effect on the environment. 40 C.F.R. § 1508.1(d). These may include actions like trail maintenance in public parks, or administrative actions that impact agency personnel. Each federal agency will develop its own list of CEs specific to their agency operations.
If an agency determines that its proposed action meets the requirement for a CE, then the NEPA process is at an end. However, if the action is not a CE, then the agency will prepare an Environmental Assessment (“EA”), which will help determine whether the preparation of an EIS is required. An EA is a fairly concise document that should discuss the purpose and need of the agency’s proposed action, alternatives to the action, and the environmental impacts of the proposed action and the alternatives. 40 C.F.R. § 1501.5. Because the purpose of the EA is to determine whether an EIS is necessary, it requires a less in-depth examination than an EIS does. After completing an EA, the agency will either determine that it must prepare an EIS, or it will issue a Finding of No Significant Impact (“FONSI”). An agency will issue a FONSI if, after preparing an EA, the agency determines that the proposed action will not have any significant effects on the environment. 40 C.F.R. § 1501.6(a). If an agency issues a FONSI for a proposed action, that is the end of the NEPA process. However, if the agency does not issue a FONSI, it must continue with the NEPA process and prepare an EIS.
As previously mentioned, the EIS is a comprehensive written document that requires the agency to examine the environmental impacts of the proposed action, and reasonable alternatives to the proposed action. The impacts that agencies must consider include direct effects that are caused by the agency action and occur at the same place and time as the action; indirect effects which occur at a later time, but are still reasonably foreseeable; and cumulative effects which result from when the effects from the proposed action are combined with the effects of other agency actions in the area. 40 C.F.R. § 1508.1(g). After preparing a draft version of the EIS, the agency will make it available for public comment before issuing a final draft.
Importantly, NEPA does not require federal agencies to select the most environmentally sustainable alternative to any proposed action. If an agency has appropriately complied with the NEPA process, the agency will have satisfied its statutory requirements. The purpose of NEPA is for agencies to “ensure agencies consider the environmental impacts of their actions in decision making.” 40 C.F.R. § 1502.1.
Regulatory History
After NEPA was enacted, CEQ issued a series of interim guidelines that outlined how agencies would draft an EIS. Detailed regulations were not issued until 1978. The 1978 regulations represented CEQ’s interpretation of the statutory text of NEPA, and Congress’s intent in passing the act. Although CEQ made minor amendments to the regulations in 1979, and again in 1986, the NEPA regulations remained unchanged for over 40 years.
In 2020, CEQ implemented sweeping revisions to the NEPA regulations. The new rules represented the first comprehensive overhaul that the NEPA regulations had seen. Changes made by the 2020 regulations included establishing page limits for both EAs and EIS reports; setting time limits for when the NEPA had to be completed; and removing language directing agencies to consider direct, indirect, and cumulative impacts and replacing it with language directing agencies to only consider those impacts that are “reasonably foreseeable.” For more information on the 2020 regulations, click here.
When the Biden administration took office in 2021, it instructed federal agencies to review all regulations that had been adopted during the Trump administration, with a specific focus on environmental regulations. After reviewing the 2020 NEPA rules, CEQ began a multi-phase rulemaking process to rollback or modify changes made by the 202 regulations. CEQ completed Phase 1 of its rule-making process in 2022 where, among other things, CEQ restored the language directing agencies to analyze the cumulative impacts of their proposed action when drafting an EIS report.
In June 2023, President Biden signed the Fiscal Responsibility Act (“FRA”) into law. The FRA contained various statutory amendments to NEPA, codifying several changes CEQ made to the NEPA regulations during the Trump administration, including requirements for page limits and deadlines for NEPA documents. On July 31, 2023, CEQ began Phase 2 of its rule-making process by publishing a Notice of Proposed Rulemaking in the Federal Register to introduce a proposed rule that would address the remaining 2020 regulations, and bring the regulations in-line with statutory amendments Congress made to NEPA under the FRA.
Proposed Regulations
According to CEQ, the changes it is proposing under Phase 2 of its rule-making process fall into five general categories. Those categories are: (1) revisions to implement the amendments to NEPA made by the FRA; (2) proposals to amend changes introduced by the 2020 regulations and revert back to language from the 1978 regulations; (3) proposals to remove provisions added by the 2020 rule that CEQ considers imprudent or legally unsettled; (4) proposals to amend certain provisions to enhance consistency and efficiency in the NEPA process; and (5) revisions to implement “decades of CEQ and agency experience implementing and complying with NEPA[.]”. Because the proposed rules are comprehensive, including everything from substantive changes to grammatical corrections, the following is an overview of some of the most impactful changes that CEQ has proposed.
Several of the proposed changes in CEQ’s draft rule would emphasize that the purpose of NEPA is more than just procedural. To that end, CEQ would restore language from the 1978 regulations stating that the purpose of NEPA is for agencies to analyze, consider, and disclose the environmental effects of their proposed actions. Additionally, the proposed rules would restore language from the 1978 regulations emphasizing the importance of NEPA reviews for informed agency decision-making.
CEQ is proposing substantive revisions that would prove a more “robust and consolidated” description of the process that agencies should use to determine what level of NEPA review is appropriate. The revisions would clarify that agencies must determine whether NEPA applies to a proposed action as a threshold matter, and that there must be an “irreconcilable and fundamental conflict between complying with a statutory provision and complying with NEPA” in order for an agency to conclude that NEPA does not apply to a particular proposed action. CEQ is also proposing changes to regulations addressing the types of environmental impacts that agencies must consider when determining what level of NEPA review is appropriate. CEQ notes that the 2020 regulations narrowed the impacts that agencies should consider when making such determinations by instructing them to focus primarily on local impacts, or impacts that would effect only the direct area where the agency’s proposed action would take place. CEQ proposes to restore language allowing agencies to consider the potential global, national, regional, and local impacts of their proposed actions when determining the appropriate level of NEPA review. Other modifications to the 2020 rules include proposals to restore the requirement that agencies considers both the impacts of a single action as well as the cumulative effects from multiple actions throughout the NEPA process. Additionally, the proposal would restore language from the 1978 regulations stating that the requirement for agencies to consider alternative actions within an EIS report is “the heart of the environmental impact statement.” That language was removed by the 2020 rules.
Proposals aimed at bringing NEPA regulations in-line with the newly added amendments include language setting page limits for NEPA documents. Specifically, the proposed rules would set a limit of 150 pages for most EIS reports, and a limit of 300 pages for proposals of “extraordinary complexity.” Additionally, CEQ proposes to direct agencies to set deadlines and schedules for NEPA reviews to achieve greater efficiency in the NEPA process. The proposed rule would require agencies to set schedules for key milestones in the NEPA review process, such as reviews, permits, and authorizations.
Finally, the proposed rules would add language to the NEPA regs directing agencies to integrate climate change and environmental justice concerns into the NEPA review process. The proposed rules would require EIS reports to contain a discussion of all reasonably foreseeable climate change-related effects that would result from the proposed action. Agencies would also be required to discuss the potential for disproportionate and adverse health and environmental effects on communities with environmental justice concerns. The proposal would also add a definition of “environmental justice” to the NEPA regulations. The definition would describe environmental justice as the fair treatment of all people so that they are “fully protected from disproportionate and adverse human health and environmental effects […] including those related to climate change, the cumulative impacts of environmental and other burdens, and the legacy of racism or other structural or systemic barriers[.]”
Going Forward
In many ways, CEQ’s recent proposal represents a combination of the 1978 and 2020 regulations. They would maintain some of the changes introduced to make the NEPA process more efficient, while reintroducing language directing agencies to consider cumulative impacts and impacts that would occur outside of the direct project area. The addition of language directing agencies to analyze climate change and environmental justice concerns would also bring NEPA in-line with other similar changes to environmental statutes that have been made during the Biden administration.
The proposed rule is available in the Federal Register and will remain open for public comment through September 29, 2023.
To read the proposed rule and learn how to submit a comment, click here.
To view the textual amendments made to NEPA by the FRA, click here.
To read the text of NEPA, click here.
For more National Agricultural Law Center resources on NEPA, click here.