A Brief Summary of CEQ’s Proposed NEPA Rule

Kelley Drye Client Advisory

On January 10, 2020, the Council on Environmental Quality (“CEQ”) issued a notice of proposed rulemaking titled ​“Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act” (“Proposed NEPA Rule”). 85 Fed. Reg. 1684 (January 10, 2020). The goal of the Proposed NEPA Rule, as described by Mary B. Neumayr, the Chairwoman of the CEQ, is to streamline the NEPA review process to allow environmental reviews ​“to routinely be completed in two years.”[1] A significant decrease from the current four-and-a-half year average to complete an environmental impact statement.[2]
The Proposed NEPA Rule marks the first comprehensive update to NEPA’s regulations in over 40 years.[3] It follows President Trump’s Executive Order 13807, which established the One Federal Decision policy, provided a two-year goal for completing environmental reviews of major infrastructure projects, and directed the CEQ to consider revisions to modernize its regulations.[4] In accordance with the President’s mandate, the CEQ issued the Proposed NEPA Rule.
The Proposed NEPA Rule seeks to ​“modernize and clarify the CEQ regulations to facilitate more efficient, effective, and timely NEPA reviews by simplifying and clarifying regulatory requirements, incorporating key elements of the One Federal Decision policy, codifying certain case law and CEQ guidance, updating the regulations to reflect current technologies and agency practices, eliminating obsolete provisions, and improving the format and readability of the regulations.”[5] It does so by codifying a ​“common-sense, two-year presumptive time limit for completing an environmental impact study”; improving ​“agency coordination through the lead agency developing a joint permitting schedule, preparing a single environmental impact statement and joint record of decision, and outlining procedures to elevate and resolve disputes”; determining ​“the appropriate level of NEPA review”; and setting ​“presumptive page limits, clarify[ing] terms, codify[ing] longstanding case law, and clarify[ing] the meaning of the regulations where there is a lack of uniformity in judicial interpretation.”[6]
The Proposed NEPA Rule has received congressional support from senators and representatives from sixteen states, including Arizona, California, Ohio, South Carolina, and Washington.[7] Similarly, numerous state governments have applauded the Proposed NEPA Rule.[8]  The comment period on the Proposed NEPA Rule closes on March 10, 2020.

The CEQ’s key elements of the proposed rule[9]:

  1. Modernize, Simplify, and Accelerate the NEPA Process
    • Establish presumptive time limits of two years for completion of environmental impact statements (EISs) and one year for completion of environmental assessments (EAs)
    • Specify presumptive page limits
    • Require joint schedules, a single EIS, and a single record of decision (ROD), where appropriate, for EISs involving multiple agencies
    • Strengthen the role of the lead agency and require senior agency officials to timely resolve disputes to avoid delays
    • Promote use of modern technologies for information sharing and public outreach
 
  1. Clarify Terms, Application, and Scope of NEPA Review
    • Provide direction regarding the threshold consideration of whether NEPA applies to a particular action
    • Require earlier solicitation of input from the public to ensure informed decision-making by Federal agencies
    • Require comments to be specific and timely to ensure appropriate consideration
    • Require agencies to summarize alternatives, analyses, and information submitted by commenters and to certify consideration of submitted information in the ROD
    • Simplify the definition of environmental ​“effects” and clarify that effects must be reasonably foreseeable and have a reasonably close causal relationship to the proposed action
    • State that analysis of cumulative effects is not required under NEPA
    • Clarify that ​“major Federal action” does not include non-discretionary decisions and non-Federal projects (those with minimal federal funding or involvement)
    • Clarify that ​“reasonable alternatives” requiring consideration must be technically and economically feasible
 
  1. Enhance Coordination with States, Tribes, and Localities
    • Reduce duplication by facilitating use of documents required by other statutes or prepared by State, Tribal, and local agencies to comply with NEPA
    • Ensure appropriate consultation with affected Tribal governments and agencies
    • Eliminate the provisions in the current regulations that limit Tribal interest to reservations
 
  1. Reduce Unnecessary Burdens, Delays
    • Facilitate use of efficient reviews (categorical exclusions (CEs), environmental assessments)
    • Allow agencies to establish procedures for adopting other agencies’ CEs
    • Allow applicants/contractors to assume a greater role in preparing EISs under the supervision of an agency
 
[2] Id.
[4]  Id.
[5] Id.
[8] Id.