As discussed in an earlier post, found here, the Council of Environmental Quality (“CEQ”) recently published proposed amendments to update the procedural regulations used to implement the National Environmental Policy Act (“NEPA”). The proposed amendments were published in the Federal Register on January 10, 2020 and can be found here. Public comments on the proposed amendments are due on March 10, 2020. A more expansive discussion of the proposed amendments follows.
CEQ’s proposed amendments are the first major changes to NEPA’s procedural regulations since their promulgation in 1978. The proposed amendments aim to increase efficiency of the environmental review process through reductions of paperwork and avoidance of delays. While many of the proposed changes simply reorganize, clarify, or add other non-substantive revisions, the proposed amendments include several significant substantive changes. If adopted, the amendments would apply to all NEPA reviews initiated after the effective date. Agencies would have the discretion to apply the changes to reviews that are ongoing at the time the rule becomes effective.
Threshold analysis of whether NEPA review is required
The proposed amendment includes several provisions intended to clarify how and when an agency decides whether a NEPA review is required and what level of review is required. In §1501.1 of the proposed regulations, CEQ proposes to add a list of considerations to determine if NEPA applies: (1) whether the proposed action is a “major federal action”, (2) whether the action is non-discretionary, (3) whether compliance with NEPA would conflict with other statutory requirements, (4) whether compliance with NEPA would be inconsistent with Congressional intent, and (5) whether the agency has determined that other analyses or processes serve as an equivalent to NEPA. To guide agencies under the first consideration, the proposed amendment narrows the definition of a “major federal action” to only those actions subject to extensive federal control and responsibility. This removes actions from NEPA review where there is “minimal federal funding or minimal federal involvement such that the agency cannot control the outcome on the project.” The agency is seeking public comment on whether to include a dollar or percentage threshold that would determine whether the level of federal funding for a project is sufficient to deem it a “major federal action”.
Although no significant changes are proposed for NEPA’s categorical exclusions (“CEs”), the proposed amendment does provide clarity of an agency’s designation and application of CEs. Under the current rules, CEs are types of actions designated by individual agencies (and included in their internal NEPA compliance regulations) that do not require NEPA review. CEQ is seeking comments on whether it should include specific CEs in the final regulations to be applied by all agencies. Comments are also sought on whether to allow an agency to apply another agency’s CEs to its own actions.
Environmental Assessments (“EA”) and Environmental Impact Statements (“EIS”)
In an attempt to reduce paperwork and increase efficiency, the proposed amendments include several major changes to the EA and EIS requirements. The biggest change in the proposed amendments is to the definition of “effects”. This is significant because the required level of NEPA review turns on the action’s potential effects to the environment. The current “effects” definition is interpreted broadly and requires agencies to consider indirect and cumulative effects of the proposed agency action, meaning more expansive and longer NEPA reviews. The proposed changes narrow the definition so that only those effects that are reasonably foreseeable and have a reasonable close causal relationship to the proposed action must be considered. The proposed amendment explicitly provides that cumulative effects need not be considered, nor should effects be considered significant if they are remote in time or geography, or the result of a lengthy causal chain. This proposed change is certain to attract significant comments.
Similarly, the proposed amendments include limitations to the alternatives that must be considered in an EIS. CEQ’ proposed amendment intends to limit the number of project alternatives considered in an EIS by striking requirements that agencies consider alternatives outside the jurisdiction of the lead agency; only reasonable alternatives are to be considered. CEQ seeks comments on whether a presumptive maximum number of alternatives that must be considered.
Other proposed efficiency changes to the EA and EIS process include time and page limits. CEQ proposes to limit EAs to 75 pages and a one year timeframe for completion. EISs will be limited to 300 pages and a two year timeframe. Both limits are subject to extensions with approval of a senior agency official involved in the review process. Agencies would also be given more flexibility to complete their EAs and EISs by relying on applicants or contractors to provide more information or materials. If an agency relies on the applicant or contractor to prepare the EA or EIS, the agency must still take responsibility for its content and accuracy through an independent evaluation.
Vorys will continue to follow the proposed amendment throughout the public comment process. If you have any questions regarding the changes discussed above, or other proposed changes that are not included in this discussion, please feel free to reach out to a Vorys attorney.