Last week, the Council on Environmental Quality (CEQ) released the long-anticipated revisions to the National Environmental Policy Act (NEPA) regulations, delivering on the Trump administration's promise to streamline environmental review of major federal infrastructure and other projects (Update on the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg. 1684 (January 10, 2020)). This proposal marks the first substantial revision to the NEPA regulations in over 40 years and will likely trigger the most attention of any environmental regulatory proposal coming out of the administration prior to the November election. Comments on the proposal are due on or before March 10, 2020.
The approach taken by the CEQ appears to be direct—CEQ listened to the range of concerns raised about the NEPA process and proposed revisions to the regulations to address them. The Notice of Proposed Rulemaking reflects years of NEPA reform efforts, including executive orders from both Democratic and Republican administrations, legislative reforms Congress adopted in recent surface transportation bills, and standard best practices in environmental analysis.
The proposed regulatory amendments that have garnered the most attention deal with the administration's proposal to narrow the scope of NEPA review and to limit when NEPA review is triggered in the first place. Several key issues addressed in the proposal include the following:
Scope of Effects
The proposed regulations eliminate the need to address the "cumulative effects" of an action—a long-stated goal of NEPA critics—and define a project's "effects" as more causally related to the action itself. 85 Fed. Reg. at 1707-08. Under the proposal, effects "must be reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives" that is beyond a "but for" relationship and akin to proximate cause in tort law. 85 Fed. Reg. at 1708. These changes have been viewed as an attempt to limit when an agency is required to include an assessment of greenhouse gas (GHG) or climate change impacts in an EA or EIS. This political flash point has received a tremendous amount of attention in light of several recent court rulings finding that the government failed to properly assess (or review at all) a project's "downstream" GHG impacts. See, e.g., Sierra Club v. Fed. Energy Regulatory Comm'n, 867 F.3d 1357 (D.C. Cir. 2017). Especially in the energy extraction and delivery context, some courts have concluded that the use of fossil fuels could be a logical indirect effect of agency approval, and that GHG impacts should be summarized in some fashion. See, e.g., WildEarth Guardians v. Zinke, 368 F. Supp. 3d 41 (D.D.C. 2019); Indigenous Envtl. v. U.S. Dep't of State, 347 F. Supp. 3d 561 (2018). The proposed regulations attempt to provide more certainty regarding the scope of the effects analysis NEPA requires and may provide support for agencies to push back against consideration of GHG impacts.
Definition of Major Federal Actions
The proposed rules deal with the so-called small handles principle that has been a feature of NEPA litigation for decades. 85 Fed. Reg. at 1708-09. Even a slight federal "hook," based on funding, permitting, or oversight, has been deemed enough to trigger NEPA analysis. CEQ's proposal would give federal agencies the discretion not to prepare any NEPA document if the nexus between the proposed action and the federal role is deemed too tenuous. 85 Fed. Reg. at 1709. The scope of that discretion and how that nexus is defined is sure to attract hundreds, if not thousands, of comments.
Timing, Page-length and Coordination
The proposed revisions also address the perennial complaints that the NEPA process takes too long and that the documents themselves have become rote summaries of encyclopedic information and unlikely to truly educate the public about proposed federal actions. To this end, the proposed regulations call for environmental impact statements (EISs) to be completed within two years, and environmental assessments (EAs) within one year. 85 Fed. Reg. at 1699. The documents should be concise, no more than 150 pages, for an EIS (300 for complex projects) and 75 pages for an EA. 85 Fed. Reg. at 1697, 1719. When a project requires multiple agencies to issue approvals or permits, the proposed regulations call for a single decision document for purposes of NEPA compliance. 85 Fed. Reg. at 1698. These changes are consistent with objectives already articulated in President Trump's Executive Order 13807 (August 15, 2017) and subsequent interagency agreements promoting the "One Federal Decision" concept. 85 Fed. Reg. at 1687.
NEPA Exhaustion
Other changes target a series of complaints focused more on the way NEPA litigation has created confusion about reasonable compliance strategies or the perception that litigation has served to delay or even indefinitely postpone needed infrastructure development. Proposed changes in this vein have received significant attention in the media and from stakeholders across the political spectrum.
The proposed regulations include requirements for the "exhaustion" of objections to the analysis in a NEPA document. 85 Fed. Reg. at 1693. Stakeholders must articulate in a timely manner all potential concerns with an agency's consideration of alternatives or the conclusions reached in its impact assessment before the expiration of any applicable comment period. Id. If they fail to comment by the expiration date, those parties would be precluded from raising those objections in any Administrative Procedure Act challenge. Placing these requirements in the regulations follows the rationale in the Supreme Court decision in Dep't of Transp. v. Public Citizen, 541 U.S. 751 (2004). In that case the Supreme Court concluded that commenters forfeited any objections to an EA not raised during the comment period.
Available Remedies for NEPA Violations
Finally, the regulations also attempt to limit the remedies available to parties in the event of a violation of the NEPA regulations. 85 Fed. Reg. at 1694. The proposal would add a "remedies" section specifically stating that harm from a NEPA violation can be remedied by compliance with NEPA's procedural requirements. Id. Here again, the proposed rules echo principles already announced by the Supreme Court in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), regarding when injunctive relief is available to plaintiffs once a NEPA violation has been proved. The concern over how the judicial branch considers administrative remedies is not new. But placing specific standards in an executive agency's regulations is new. Whether this proposal is retained in a final rule, and if it is, whether it survives a challenge to the scope of the CEQ's authority to set such standards, remains to be seen.
To help sort through the draft revised CEQ regulations, Venable will present "It's as Big as it Gets: The New NEPA Beginning," a free, interactive webinar on Tuesday, February 4, 2020, from 2:00 to 3:00 p.m. ET. Click here to register.
Although NEPA is not often front-page material, these proposed regulations will perhaps trigger the most attention of any environmental regulatory proposal coming out of the administration prior to the November election.
Comments on the proposed rules are due by March 10, 2020. CEQ is also holding two public hearings on February 11, 2020 and February 25, 2020.
Clients with questions about the proposal or who are considering commenting on the proposal are encouraged to reach out to Fred Wagner (FRWagner@Venable.com) or Tom Lingan (TMLingan@Venable.com). Venable is well positioned to assist clients in the preparation of comments.