October 28, 2020

Volume X, Number 302

Advertisement

October 27, 2020

Subscribe to Latest Legal News and Analysis

October 26, 2020

Subscribe to Latest Legal News and Analysis

CEQ Issues NEPA Emergency Guidance

On September 14, 2020, the Council on Environmental Quality (CEQ) issued nonbinding guidance to agencies to help them comply with the National Environmental Policy Act (NEPA) during emergencies. The guidance comes less than three months after President Trump signed an Executive Order on “Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities,” which was the subject of a previous news alert. The guidance updates and replaces previous CEQ guidance on this topic. The guidance is effective immediately and not subject to public notice and comment.

Existing NEPA regulations, 40 C.F.R. § 1506.12, already recognize some emergency situations will require urgent agency action that cannot wait for the agency to prepare an environmental impact statement (EIS) to evaluate significant environmental impacts before responding. In those rare situations, the regulations allow agencies to consult with the CEQ to make “alternative arrangements” instead. The new NEPA guidance, including its two “attachments,” builds on that authority by clarifying the process for identifying those alternative arrangements. It then addresses those emergency situations in which the agency’s urgent response is unlikely to have significant effects and thus ordinarily might allow the agency to prepare an environmental assessment (EA) or rely on a categorical exclusion. It identifies the following types of emergencies: “natural disasters, catastrophic wildfires, threats to species and their habitat, economic crisis, infectious disease outbreaks, potential dam failures, and insect infestations.” Notably, the CEQ guidance does not (and legally cannot) exempt any activities from NEPA.

Environmental Impact Statements

CEQ amended the regulations addressing emergency circumstances earlier this year to clarify that they provide for alternative arrangements for compliance with NEPA. The new guidance further clarifies that agencies should take the initiative in developing these alternative arrangements based on emergency-specific facts and circumstances and in consulting with CEQ. While the alternative arrangements must address the actions necessary to respond immediately to the impacts of an emergency, the long-term response to the emergency remains subject to the regular NEPA process.

Attachment 1 to the guidance provides agencies with a “step-by-step process” for determining the appropriate path for the NEPA review of actions proposed in response to an emergency situation and describes the factors for an agency to address when requesting and designing alternative arrangements. Once the agency develops the alternative arrangements, the guidance states the CEQ will provide documentation detailing the alternative arrangements and the considerations on which they are based.

Finally, the guidance reiterates that alternative arrangements do not waive the requirement to comply with NEPA, but establish an alternative means for compliance. Final agency action taken pursuant to alternative arrangements may also be subject to judicial review.

Environmental Assessments

Attachment 2 to the guidance addresses situations where an agency can prepare a “focused, concise and timely” EA when considering proposals with environmental impacts that are non-significant or of uncertain significance. This guidance seemingly would be equally applicable for EAs in emergency and non-emergency situations.

When preparing an EA, the agency should briefly describe information that substantiates the purpose and need for the action and incorporate by reference information that is reasonably available to the public. Additionally, the agency should briefly describe the existing conditions and the projected future conditions of the area impacted by the action, with the goal to show that environmental effects have been considered and the facts found indicate no significant impact.

The guidance also explains that the agency should list and briefly describe its proposed action and reasonable alternatives that meet the purpose and need. The guidance emphasizes that the agency must use its discretion to ensure the number and range of reasonable alternatives is not arbitrary or capricious. If there is no conflict over the effects of the proposed action, the agency can consider the proposed action and proceed without consideration of additional alternatives. Otherwise, the agency must identify reasonable alternatives that meet the action’s purpose and need, consistent with NEPA section 102(2)(E).

When it comes to the description of the environmental impacts of the proposed action and alternatives, the guidance explains that the agency should provide enough information to support a determination to prepare either an EIS or a finding of no significant impact (FONSI). The focus should be on whether the action would significantly affect the quality of the human environment. The guidance states that the agency may either discuss the impacts of each alternative separately or together in a comparative description. Finally, the agency may contrast the impacts of the proposed action and alternatives with the current condition and expected future condition in the absence of the action. According to the guidance, this constitutes consideration of a no action alternative as well as demonstrating the need for the action.

The above guidance notwithstanding, agencies must continue their efforts to notify and inform the affected public and relevant Federal, State, Tribal, and local agency representatives of the agency activities and proposed actions. Agencies must comply with the CEQ NEPA regulatory requirements for content, interagency coordination, and public involvement to the extent practicable. 40 C.F.R. §§ 1501.5, 1501.6, and 1506.6.

© 2020 Beveridge & Diamond PC National Law Review, Volume X, Number 268
Advertisement

TRENDING LEGAL ANALYSIS

Advertisement
Advertisement

About this Author

James M. Auslander Natural Resources & Project Development Attorney Beveridge & Diamond Washington, DC
Principal

James (Jamie) M. Auslander's legal practice focuses on project development, natural resources, and administrative law and litigation.

Mr. Auslander co-chairs Beveridge & Diamond’s Natural Resources and Project Development Practice Group, including its Energy Practice. He focuses on complex legal issues surrounding the development of oil and gas, hard rock minerals, renewable energy, and other natural resources on public lands onshore and on the Outer Continental Shelf. He frequently litigates appeals before federal courts and administrative bodies regarding rulemakings, permits...

202-789-6009
W. Parker Moore Environmental Attorney Beveridge & Diamond Washington, DC
Principal

Parker guides complex projects to successful completion.

His environmental law practice is an outgrowth of his love for the natural world. He co-chairs Beveridge & Diamond’s Natural Resources and Project Development Practice Group and its NEPA, Wetlands, and Endangered Species Act groups.

Parker dedicates his practice to successful project development, advising clients nationwide on activities implicating NEPA, wetlands regulation, and federal and state species protection laws, including the Endangered Species Act, Migratory Bird Treaty Act, Bald and Golden Eagle Protection Act, and CITES. He also defends clients against agency enforcement actions and citizen suits, applying his substantive knowledge of natural resources law and project development to craft creative, sound, and successful legal strategies.

Parker brings a balanced approach to working on high profile projects to meet the objectives of developers and the legal demands of state and federal regulators. Clients involve him at all stages of project development, from initial project conception and design to defense of completed facilities. He frequently is called on to help get projects back on track when they are delayed by permitting complications and other regulatory issues, bringing to bear his extensive experience to identify innovative and effective solutions. In all cases, Parker’s goal is to help his clients complete legally-defensible projects on time and on budget.

Before joining B&D, Parker clerked at the White House Council on Environmental Quality. He also is a professionally-trained wetlands ecologist and has years of experience identifying wetlands, obtaining jurisdictional determinations from the U.S. Army Corps of Engineers, surveying for protected species, and drafting NEPA documents.

202-789-6028
Associate

Ben focuses his practice on environmental compliance, permitting, and litigation.

He has represented clients in front of the Connecticut Department of Energy and Environmental Protection, Department of Public Health, planning and zoning commissions, wetlands commissions, and zoning boards of appeal.

206-620-3026
Advertisement
Advertisement