The Council on Environmental Quality (CEQ) issued its proposed rule on January 9 to significantly revamp its regulations implementing the National Environmental Policy Act (NEPA) for the first time since the 1970s. In general, the changes are aimed at narrowing the scope of NEPA review in order to reduce the time and resources involved in completing NEPA documents, including environmental impact statements (EISs). CEQ proposes to do so by narrowing both the range of alternatives that need to be considered, as well as the types of effects. The pre-publication version is almost 200 pages, but the following are some of the key changes proposed:
- Eliminates the requirement to consider cumulative effects altogether. This is perhaps the most significant change, since agencies often struggle with the proper scope of cumulative impacts to include and litigants often focus on cumulative effects in challenging NEPA documents.
- Clarifies 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 proposal also 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 help significantly reduce the time and resources involved in NEPA reviews.
- Adopts language that environment impacts need only be considered if they are reasonably foreseeable and have a close causal relationship to the proposed action. CEQ cites the Supreme Court's holding in Department of Transportation v. Public Citizen, 541 U.S. 752, 757 (2004), that "effects must be reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives; a 'but for' causal relationship is insufficient to make an agency responsible for a particular effect under NEPA." This new text could help agencies avoid discussion of more tenuously connected impacts, including upstream and downstream impacts in some cases.
- Directs that agencies are not required to undertake new scientific and technical research to inform their NEPA analyses.
- Clarifies that NEPA does not apply to projects with minimal federal funding or minimal federal involvement.
- Clarifies that agencies need to update environmental documents only when there is new information or a change in the proposed action AND a major Federal action remains to occur.
These are significant changes and they will engender a great deal of comment and controversy. Comments on the proposal will be due 60 days from when the proposal is published in the Federal Register. There are also two public hearings scheduled on the proposal: February 11 in Denver, and February 25 in DC. Once the rules are finalized, challenges are sure to follow.
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.