What will the next 50 years of NEPA look like?
Posted in: Environmental
The National Environmental Policy Act (NEPA) became law on January 1st, 1970. NEPA is meant to require agencies to make informed decisions on federal actions and consider a variety of possible alternatives and environmental consequences. The three levels of NEPA documents are Categorical Exclusions (Cat Exs), Environmental Assessments (EAs) and Environmental Impact Statements (EISs). Cat Exs require the least stringent level of documentation, so they are easiest to get and most prevalent. EISs require the most intensive level of documentation and take the longest to get—on average, about four and a half years.
There have been no major updates to the NEPA regulations since 1978, when the Council on Environmental Quality (CEQ), the federal agency which administers the implementation of NEPA across all agencies, issued 40 CFR Parts 1500-1508. In addition to the CEQ NEPA regulations, CEQ has issued a variety of guidance documents on the implementation of NEPA in past years.
Starting in 2017, the current administration issued Executive Order 13807 for Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure. This was meant to revamp and streamline the federal government process for environmental reviews for federal actions, including specific goals for processing time and document length.
EO 13807 introduced the concept of One Federal Decision—a framework that requires agencies to work together to deliver “one decision” for major infrastructure projects, with an intent to reduce the project timeline (though in practice, it often simply changes when planning occurs with no substantial reduction in overall project timelines). Since the issuance of EO 13807, the CEQ has been taking action to implement it. In June 2018, CEQ issued Advance Notice of the Proposed Rulemaking Update to the Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act in the Federal Register and solicited comments. Over 12,500 comments were received.
On January 10th, 2020 CEQ released its proposed rule, for which it is soliciting comments until March 10th. The proposed changes include those to the definition of federal actions, reasonable alternatives and thresholds for when NEPA is applicable. It also proposes changes to how agencies evaluate the impacts of their actions. Under the current version of NEPA, agencies must consider direct, indirect and cumulative effects of a project. This has widely been taken to mean agencies must consider a project’s impact on the environment for issues such as climate change.
Instead, the proposed changes clarify that only effects that are “reasonably foreseeable” and show “a reasonably close causal relationship” must be considered. This seemingly removes the requirement to analyze the cumulative impacts of a project.
So what happens after March 10th? Comments will need to be reviewed and addressed, and if and when the proposed revised regulation becomes law, it is anticipated that legal challenges will continue. Many federal agencies will likely need to revise their guidance for implementing NEPA to comply with the CEQ regulation, too.
What are we doing at Mead & Hunt? As seasoned NEPA practitioners, we are working with various industry groups in the development and compilation of comments. And we continue to look for ways to streamline so we can more efficiently lead our clients through the NEPA process.