United States: White House Publishes Draft Guidance To Promote More Efficient Environmental Reviews

White House Publishes Draft Guidance To Promote More Efficient Environmental Reviews

On December 7, the White House Council on Environmental Quality published draft guidance to improve the efficiency and timeliness of environmental reviews under the National Environmental Policy Act. In the draft guidance, CEQ urges federal agencies to make their NEPA documents shorter, simpler and easier to read. The draft guidance is part of the White House's broader effort to modernize the NEPA process and expedite the permitting and development of needed infrastructure.

According to the draft guidance, federal agencies should:

• Prepare NEPA documents that are straightforward and concise;
• Integrate their NEPA reviews into early project planning efforts;
• Take advantage of existing studies;
• Conduct an early and well-defined scoping process to focus their NEPA reviews on the most important environmental issues;
• Coordinate their NEPA reviews with other governmental reviews;
• Develop expeditious timelines for completing the NEPA process; and
• Target their responses to comments in proportion to the scope and scale of the environmental issues raised.

The draft guidance explains that the emphasis on efficiency and timeliness reflects CEQ's continuing commitment to review its existing regulations in accordance with Executive Order 13563, which President Obama issued earlier this year to improve federal agency regulations and their regulatory review procedures. Thus, the draft guidance explains that it promotes an effective decision-making process that is "tailored to avoid excessive burden." On the other hand, the draft guidance also explains that it merely provides CEQ's interpretation of existing regulations and does not change the obligations of federal agencies under NEPA.

NEPA documents should be simple, straightforward and concise. Turning to the substance of the draft guidance, CEQ emphasizes that NEPA does not encourage federal agencies "to produce an encyclopedia of all applicable information." Rather, NEPA documents "should be as concise as possible" and should be written in "plain language" so that they are clearly understood. Impacts should be discussed in proportion to their significance, and for issues deemed to be insignificant "there should be only enough discussion to show why more study is not warranted." The draft guidance recommends that the text of an Environmental Impact Statement should be less than 150 pages under normal circumstances and less than 300 pages for projects of unusual scope or complexity. Environmental Assessments should be "no more elaborate than necessary" and should vary with the scope and scale of the environmental impacts, "rather than just with the scope and scale of the proposed action."

Integrate NEPA with early project planning efforts. The draft guidance instructs federal agencies to integrate their NEPA reviews into project planning efforts at the earliest possible stage. This helps to expedite the NEPA review process, promote effective coordination with non-Federal actors, and avoid situations where NEPA becomes merely an "after-the-fact process" to justify decisions that already have been made. When the federal agency is acting on an application for a license or permit, the agency should, whenever possible, assist the applicant in gathering and developing the requisite information in advance of the application, so that the NEPA process can meaningfully begin as soon as the application is submitted.

Take advantage of existing studies. The draft guidance recommends that agencies should consider relying on previous studies when preparing an EIS or an EA. This includes adoption of another agency's prior NEPA document, or incorporating by reference materials that are reasonably available to the public.

Conduct an early and well-defined scoping process. The draft guidance explains that any early process for input from the public and interested governmental agencies "provides a transparent way to identify significant environmental issues and deemphasize insignificant issues, thereby focusing the analysis on the most pertinent issues and impacts." An early scoping process can also promote coordination of the NEPA process with other reviews and studies being conducted for the proposed action. According to CEQ, all of these factors help eliminate controversy and promote efficiency.

Coordinate NEPA with other governmental reviews. The draft guidance emphasizes the need for timely and effective intergovernmental coordination with any state, local, or tribal review processes. The draft guidance urges federal agencies to "explore every reasonable opportunity" for this coordination – such as joint planning processes, joint environmental research and studies, and joint public hearings – so that all of the required reviews "can run concurrently rather than consecutively." In addition, federal agencies should seek efficiencies and avoid delays by attempting to meet non-Federal "NEPA-like requirements" in their environmental documents. Federal agencies should similarly coordinate their NEPA reviews with other federal reviews that are required under other laws or by executive order. A coordinated, concurrent process not only avoids duplication of effort, but also provides opportunities for more informed decision-making.

Develop expeditious timelines for completing the NEPA process. The draft guidance explains that while neither NEPA nor the implementing regulations set forth time limits for completing the environmental review, the regulations do encourage federal agencies to establish appropriate time limits for their NEPA actions. The factors agencies should consider in doing so include the potential for environmental harm, the size of the proposed action, other time limits established by other legal requirements, the degree of public need for the proposed action, and the consequences of delay.

Prepare targeted responses to comments. According to the draft guidance, agencies should focus their responses to comments on the significant environmental issues that are raised. Agencies should therefore consider using errata sheets for minor issues and corrections instead of preparing full-blown responses or rewriting the draft document.

The draft guidance explains that it is not a rule or regulation and does not – in and of itself – establish any legally binding requirements. It is nevertheless a significant development that could profoundly affect how NEPA reviews are conducted. NEPA documents are often voluminous and, depending on the project's complexity, can take a year or more to complete. The guidance is obviously intended to change this practice. As CEQ explained in its December 7 press release, once finalized the guidance will lead to "quicker" decisions that protect the environment "more efficiently" and "support vital economic growth."

Within the next few days, CEQ will publish the draft guidance in the Federal Register, which will start a 45-day period for public comment. The comment period provides those most affected by NEPA to propose additional improvements and streamlining techniques to CEQ for inclusion in the final guidance.

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