United States: Administration Proposal To Overhaul Environmental Review Under The National Environmental Policy Act Creates New Opportunities For Project Development

Washington, D.C. (January 15, 2020) - On January 10, 2020, the Council on Environmental Quality (CEQ) published a notice of proposed rulemaking to update regulations for implementing the National Environmental Policy Act (NEPA). The proposal is a comprehensive update of the regulations that govern how regulatory agencies must analyze the environmental impacts of federal actions. The proposed revisions fulfill Trump Administration promises to streamline permitting of infrastructure, energy and other land development projects, which can take years or even decades to complete the approval process. Comments on the proposal are due March 10, 2020, and CEQ will hold public hearings on February 11 (Denver, CO) and February 25 (Washington, D.C.).

Presenting the first overall update of the NEPA regulations in more than 40 years, the proposal seeks to align the regulations with the language and intent of NEPA and court decisions that have interpreted the Act. The rule would also: 1) recognize that other federal environmental statutes are functionally equivalent to NEPA and may serve the purpose of an NEPA-required environmental impact statement, 2) encourage use of categorical exclusions for actions that would not typically result in significant effects requiring detailed review, 3) limit the scope of environmental review to only those effects that are within the agency’s jurisdiction and control, and 4) acknowledge that non-federal actions with a very minor federal role should not be considered major federal actions. Other streamlining changes would impose page and time limits and require one coordinated federal decision on multi-agency projects, among other simplifying measures.

The proposal has drawn significant opposition, particularly around the proposal’s elimination of the need to consider indirect and cumulative effects, including climate change, while advocates believe the rule facilitates needed efficiencies in the approval process for infrastructure and energy projects, with positive impacts on job creation. 

The comment period provides an important opportunity for stakeholders to assist in shaping the final rule by submitting detailed comments and information on these proposed regulatory changes. Input for the administrative record on the approval process under the current rules and insights into expected impacts of the proposed revisions will be particularly useful in finalizing the rule. The rule is certain to be challenged in court and comments from interested parties may well be a key factor in the outcome of that litigation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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