The final National Environmental Policy Act (NEPA) rule by the White House’s Council on Environmental Quality (CEQ) has been released. NEPA, which was signed into law on Jan. 1, 1970, requires federal agencies to assess the environmental effects of their proposed actions prior to making decisions.
“National Stone, Sand & Gravel Association (NSSGA) applauds the Administration for releasing the final rule that will bring much needed modernization and clarity to the National Environmental Policy Act (NEPA) process – while still maintaining strong environmental protections,” said NSSGA Vice President of Government and Regulatory Affairs Michele Stanley. “Once enacted, this rule will remove unnecessary red tape and allow taxpayer dollars to be used to develop much needed infrastructure that sustains high-paying jobs, improves our communities and advances environmental stewardship.
“It has been more than 40 years since a comprehensive update of the NEPA regulations has been conducted,” she continued. “During this time the process has created duplicative agency actions resulting in year-long delays in the permitting of infrastructure projects. We have witnessed hundreds of public works projects, which are important to the livelihoods of all Americans, be halted and delayed by unnecessary lawsuits and bureaucratic setbacks that do nothing to advance the underlaying goals of NEPA. These setbacks caused by the current process is harming our economic potential needed to help our nation recover. Today’s action is an important step in unleashing our potential by allowing investments in renewable energy, clean drinking water, affordable housing, efficient transit and projects that reduce congestion and delays to finally move ahead.”
U.S. Chamber of Commerce CEO Tom Donohue noted, “It should not take longer for a project to get permitted than it does for it to be constructed, but unfortunately that is often the case in the United States today. In this time of economic hardship, America must be able to put people to work to rebuild our aging transportation infrastructure like highways, bridges and airports. If we are serious about wanting to improve our climate, we must be able to build the clean energy infrastructure needed like solar panels, wind farms and transmission lines. And if we wish to provide underserved communities with environmentally sustainable infrastructure that unleashes economic opportunities, we must be able to expand access to transit lines.
“These NEPA updates will make the federal permitting process more predictable and transparent,” he said. “It will establish timelines for a decision and make requirements more straightforward. Ultimately, this new rule is not about the outcome of permit applications, but the process and time it takes to get to a decision. Make no mistake: NEPA is vital to protecting our environment. The Chamber wholeheartedly supports a thorough environmental review process for projects. This NEPA update does not change existing environmental laws, and it maintains public input opportunities that are so important. Instead, these updates return NEPA back to its original intent – a timely and focused review of environmental impacts – rather than a tool to delay projects for years and even decades, which is what it had become.”
“Today, the Council on Environmental Quality promulgated a final rule with the most sweeping changes to the regulations since the CEQ initially promulgated them in 1978,” said Thaddeus Lightfoot, a partner at the international law firm Dorsey & Whitney. “Many of the changes are welcome and will improve the environmental review process under NEPA. But some are highly controversial and appear to undermine NEPA’s goal of placing consideration of a project’s environmental effects on the same level as economic and other considerations.
“For the NEPA’s first eight years, there were no regulations construing the statute, but there were numerous federal court decisions, including United States Supreme Court decisions, interpreting the law. In 1978, the CEQ promulgated a comprehensive set of regulations governing federal agency implementation of NEPA which largely codified federal decisions in the statute’s first eight years. CEQ has issued numerous guidance documents on statutory implementation since 1978 but has made only limited modifications to its NEPA rules,” Lightfoot said.
“This final rule makes substantial and substantive modifications to virtually every significant CEQ rule. Many of the modifications will improve a NEPA environmental review process that often takes too long and costs too much. For example, the final rule establishes a presumptive time limit of two years for the preparation of environmental impact statements (EISs) and one year for the preparation of environmental assessments (EAs), and presumptive page limits. The presumptive time and page limits, which federal agencies may modify for more complex projects, should encourage more efficient action by agencies. Where NEPA review of a single project involves multiple agencies, which is common for larger projects with a number of environmental permits and approvals, the new rules require federal agencies to establish joint schedules, prepare a single EIS, and issue a single record of decision approving the EIS, where appropriate. Lead federal agencies also will have a stronger role in resolving disputes with other agencies cooperating in the NEPA review process. And the rules should reduce duplication by facilitating use of documents prepared by state, tribal, and local agencies to comply with NEPA,” Lightfoot said.
“But certain provisions in the new rule appear to undermine NEPA,” he continued. “The most significant change in the CEQ rules is the modification of the definition of the term ‘effects.’ The term is undefined in NEPA’s statutory language but the former CEQ rules defined both direct and indirect effects. The former rules also required an evaluation of ‘cumulative impacts,’ which it defined as a project’s incremental impact ‘when added to other past, present, and reasonably foreseeable future actions.’ The new CEQ rule no longer expressly eliminates cumulative impact analysis, as did the proposed version of the rule published for public comment in January 2020. But the final rule still eliminates the distinction between ‘direct’ and ‘indirect’ effects, and repeals the ‘cumulative impact’ definition. In place of the former definitions, the new CEQ rule requires analysis of only those ‘effects’ that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action. In making these changes, the new rule appears to be an attempt to narrow the scope of NEPA analysis and potentially eliminates the need to assess climate change in NEPA reviews. Although numerous federal courts hold climate change must be a part of a NEPA review, CEQ claims it may change the rule because ‘the terms direct and indirect effects, and cumulative impact do not appear in the statute and thus their use is not required by NEPA.’”
“There are two significant changes under the rule which, although controversial, appear to be consistent with NEPA’s purpose of placing environmental considerations on the same level as economic and other considerations ensuring,” Lightfoot said. “The first would allow project proponents to assume a greater role in preparing EISs with appropriate disclosure of financial or other interests and with supervision and independent evaluation by the agency. A second controversial change in the new rule that appears consistent with NEPA’s purpose is the change in the definition of ‘major federal action.’ Given its sweeping changes, the new CEQ rule revisions will be challenged. However, those challenges will face some unusual hurdles. Under the NEPA statute, federal agencies must report the environmental impacts of their actions that significantly affect the quality of the human environment. NEPA’s statutory language commands virtually nothing else. To prevail in a challenge of the new CEQ rules, litigants will have to establish the changes are inconsistent with a law forcing federal agencies to alter environmental review such that it no longer meets the statute that has been described as having ‘no law to be found anywhere in the act,” Lightfoot concluded.