In January, 2020, the Council on Environmental Quality (“CEQ”) released a set of proposed regulations that would change how CEQ implements provisions of the National Environmental Policy Act (“NEPA”). CEQ has not made any significant changes to the NEPA regulations in decades, and if the proposed rules are adopted they would be the first overhaul of the statutes implementing regulations since it was passed in 1970. While many are welcoming the proposed regulations as a long-overdue update that will streamline the NEPA process, others view the proposed regulations as reducing the environmental protections offered by the statute.
NEPA was originally enacted in 1970. According to the text of NEPA, the purpose of the Act was “to declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; [and] to enrich the understanding of the ecological systems and natural resources important to the Nation[.]” Essentially, the purpose of NEPA is to ensure that federal agencies consider the environmental impacts of their projects, and to inform the public of those impacts and involve them in developing potential alternatives.
The text of NEPA establishes procedural requirements for how the purpose of the statute is to be carried out. Under the statute, federal agencies are required to prepare detailed documents for any major federal action that would significantly affect the quality of the human environment. The preparation of the documents is known as the NEPA process, and is generally comprised of three steps. First, the agency carrying out the proposed action determines whether the action falls into a Categorical Exclusion (“CE”), a class of projects that have been deemed not to have a significant effect on the environment. Next, if the project does not fall into a Categorical Exclusion, the agency can prepare an Environmental Assessment (“EA”) which will determine whether or not the proposed action has the potential to cause significant environmental effects. Typically, an EA will contain an analysis of the environmental impacts of the project and of alternative actions that would reduce or mitigate those impacts. The EA will result either in a finding of no significant impact (“FONSI”) and the project will go forward without any further NEPA process, or the agency will conclude that it needs to prepare an Environmental Impact Statement (“EIS”). The EIS is similar to the EA in that it will contain an evaluation of the environmental impacts of the project and alternatives to the proposed action, but it is generally a much longer document that involves the completion of multiple drafts and a period for public comment.
Importantly, NEPA does not mandate any particular results or substantive outcome. Rather, it is meant to objectively evaluate the impacts that major federal actions will have on the environment.
The proposed regulations are essentially a comprehensive overhaul of how NEPA is currently implemented. Because the proposal is so extensive, the following is an overview of what would likely be the three most impactful changes. These changes would have an effect on what types of projects receive NEPA review and what kinds of environmental impacts will be considered during the NEPA process.
The proposed NEPA regulations would specifically exclude from NEPA review projects that were only minimally funded by the federal government, projects that the agency has a non-discretionary duty to carry out and lacks the authority to consider the environmental effects of during the rulemaking process, and projects where compliance with the NEPA process would clearly conflict with the requirements of another statute. This proposal is a departure from the current regulations which requires that federal agencies complete the NEPA process for any major federal action that significantly affects the quality of the human environment.
The proposed regulations also seek to limit what kinds of environmental effects will be considered during the NEPA process. Specifically, the proposed regulations would eliminate the requirement to consider “direct,” “indirect,” and “cumulative” impacts in an EIS. Instead, the EIS would only need to consider impacts which are “reasonably foreseeable and have a reasonably close relationship to the proposed action or the alternatives.” This would be a major change in the type of impact analysis that is required for an EIS. Currently, every EIS must consider all three types of impacts, direct, indirect, and cumulative. CEQ defines direct impacts as those that are caused by the federal action and occur at the same time and in the same place as the action, such as filling in a wetland to build a roadway. Indirect impacts have been defined to include those impacts that are caused by the federal action, but are further removed in both time and distance from the action, such as altered changes in traffic patterns as the result of building a new roadway. Finally, cumulative impacts have been identified as impacts on the environment which results when the incremental impact of the federal action is added to the impact all other past, present, and reasonably foreseeable future actions. The proposed regulations would no longer require that agencies consider all three types of impacts when drafting an EIS, but would instead require them to focus on those impacts which are reasonably foreseeable and have a close relationship to the action.
The proposed regulations would also set both page limits for NEPA documents and time limits for the NEPA process. This was done in an effort to streamline what is often a lengthy process. A report published by CEQ in 2018 which reviewed NEPA documents that had been prepared from 2010 to 2017 found that the average NEPA process took four and a half years to complete and that the average EIS was close to 600 pages long. The proposed regulations would set a limit of 75 pages for an EA and a limit of 150 pages for an EIS or 300 pages for an EIS that is of unusual complexity. The proposed regulations would also set a one-year time limit for the preparation of an EA and a two-year limit for the preparation of an EIS.
Reactions to the proposed rules have so far been mixed. Many are supportive of a faster NEPA process and view the proposed regulations as reducing the burden of NEPA compliance which has become both lengthy and costly. Others are concerned that the proposed regulations would eliminate the need for federal agencies to consider the impacts of their actions on climate change.
Comments are being accepted on the proposed regulations until March 10, 2020.
To view the proposed regulations and find where to submit comments, click here.
To view the text of NEPA, click here.
To view more National Agricultural Law Center resources on NEPA, click here.