Overview
On July 15, 2020, the Council on Environmental Quality (CEQ) issued a final rule significantly revising the procedures federal agencies must follow under the National Environmental Policy Act (NEPA). This marks the first significant changes to the NEPA regulations since 1978.
The changes are intended to reduce the time and resources required for a federal agency to complete its review of a proposed project under NEPA. This is done by creating new exemptions, reducing the scope of alternatives considered, and removing entire categories of impacts to be considered.
Some of the most significant changes in the rule include:
- Elimination of the requirement to consider "cumulative effects" and removing any reference to "indirect effects." This is a significant change to the program, as agencies often struggle with the proper scope of cumulative impacts to include and litigants often focus on cumulative effects in challenging NEPA documents. CEQ "intends the revisions to simplify the definition to focus agencies on consideration of effects that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action."
- Clarify that agencies should base the purpose and need for a project (and thus the range of alternatives considered) on the applicant's goals and the agency's statutory authority. The rule emphasizes that agencies need not consider every available alternative, nor any alternatives outside their jurisdiction. Since the range of alternatives considered often drives the scope of an EIS, this change could significantly reduce the time and resources involved in NEPA reviews.
- A presumptive time limit of one year for environmental assessments (EA) and two years for environmental impact statements (EIS). Longer reviews require written approval from an agency official. If agencies are able to stick to these deadlines, this would represent a significant change, as CEQ found that the average time to complete an EIS is four and a half years.
- A presumptive 75-page limit for EAs and a presumptive 150-page limit for EISs. Again, this would be a major change if these limits are enforced, as CEQ found the average length for an EIS was over 600 pages.
- Exclude projects with minimum federal funding or minimal federal involvement where the agency does not exercise sufficient control and responsibility over the outcome of the project.
These are significant changes to the NEPA process, and the rule is very controversial: CEQ received over a million comments on the proposal issued earlier this year. The rule is certain to be challenged, and there will be significant litigation over how the rule should be applied in individual cases. One of the more controversial issues is how climate change should be considered under NEPA. CEQ does not directly address climate change in the regulations themselves. Instead the preamble directs agencies to "consider predictable environmental trends in the area in the baseline analysis of the affected environment" and notes that "analysis of the impacts on climate change will depend on the specific circumstances of the proposed action." While CEQ did not directly take on the issue, climate change impacts were often addressed as "cumulative impacts" – a category which has now been removed entirely.
The effective date is September 14, 2020. Importantly, the rule provides that agencies "may apply the regulations in this subchapter to ongoing activities and environmental documents begun before [the effective date]." Thus, agencies could apply the new rule to simplify pending NEPA reviews, including potentially removing cumulative impact sections and reducing the range of alternatives considered. Applicants with pending NEPA reviews will need to carefully consider the new rule and work with the lead agency on the pros and cons of changing the scope of review mid-stream.
