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CEQ Moves to Reinstate Three Key NEPA Provisions Removed Under Trump Administration

The White House Council on Environmental Quality (CEQ) announced today that it is initiating a rulemaking to restore three important procedural provisions of the National Environmental Policy Act (NEPA) that will apply to environmental reviews for a wide range of federal projects, including those of private developers that require federal permits.

In summer 2020, CEQ promulgated significant changes to NEPA rules, described in our client alert, which significantly reduced the scope of and timeline for federal NEPA review.  Now, under the new administration, CEQ is proposing to reverse many of those changes in two phases. 

Phase 1 of the proposed rule would make the following three important changes to the 2020 NEPA rules:

  1. Restore the requirement that federal agencies evaluate the “direct,” “indirect,” and “cumulative” impacts of a proposed decision, including by evaluating a full range of climate change impacts and assessing the consequences of releasing additional pollution in environmental justice communities.  The 2020 NEPA rule eliminated references to direct, indirect, and cumulative impacts to focus agencies on analysis of effects that are reasonably foreseeable and have a reasonably close causal relationship to the proposed project.

  2. Restore the full authority of agencies to work with communities to develop and analyze alternatives that could minimize environmental and public health costs. This proposed change would give agencies greater flexibility to determine the “purpose and need” of a proposed project.  The 2020 NEPA rule limited federal agencies’ ability to develop and consider alternative designs or approaches that do not fully align with the stated goals of the project’s sponsor, which often is a private company.

  3. Establish CEQ’s NEPA regulations as a floor, rather than a ceiling, for the environmental review standards that federal agencies should be meeting.  This would restore the ability of federal agencies to tailor their NEPA procedures, consistent with the CEQ NEPA regulations, to help meet the specific needs of their agencies, the public, and stakeholders.  The 2020 NEPA rule sought to reduce the timeline for and instances in which agencies must conduct NEPA reviews, as the average time for agencies to complete an EIS is 4.5 years.

CEQ also announced that it will be working over the coming months to propose broader “Phase 2” changes to the NEPA regulations to help ensure full and fair public involvement in the environmental review process; meet the nation’s environmental, climate change, and environmental justice challenges; provide regulatory certainty to stakeholders; and promote better decision-making consistent with NEPA’s goals and requirements.

CEQ is inviting public comment on these proposed revisions.  Two public meetings on the proposed rule will be held online on October 19, 2021 from 1:00-4:00 pm EDT and October 21, 2021 from 5:00-8:00 pm EDT. 

©2021 Pierce Atwood LLP. All rights reserved.National Law Review, Volume XI, Number 279
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About this Author

Lisa Gilbreath, Pierce Atwood, Environmental lawyer
Associate

Lisa Gilbreath is an associate in the Environmental & Land Use and Energy Infrastructure Development, Acquisition & Financing practice groups. Lisa works on a wide variety of environmental and energy matters, offering clients strategic advice in regulatory, legislative, and judicial proceedings.

In her environmental practice, Lisa assists clients with numerous issues including energy project development permitting, energy and environmental litigation, air quality legislative and regulatory activities, air quality enforcement, hazardous substances and...

(207) 791-1397
Matthew D. Manahan, Pierce Atwood LLP, Environmental lawyer
Partner

Since 1989 Matt Manahan has worked closely with businesses to find innovative solutions to the environmental law issues they face. He provides strategic counsel in regulatory, legislative, and judicial proceedings involving a broad range of environmental and land use issues, including those relating to energy project development, transfer and development of contaminated property, water use, energy, and Native American regulatory claims.

Matt is adept at stakeholder negotiations, including with state and federal regulators, that are a necessary part of large...

(207) 791-1189
Randall S. Rich Pierce Atwood Partner DC Energy Energy Infrastructure Project Development & Finance
Partner

Randall Rich is the Leader of our Energy Practice Group and the partner-in-charge of the Washington, DC office. Throughout his over 38 years of experience, beginning in the Office of General Counsel of the Federal Energy Regulatory Commission (FERC) and continuing for more than 23 years at Bracewell, LLP, Randy always strives to form close personal bonds with clients as well as trusting relationships with both regulators and his colleagues in the energy bar. He gains an intimate understanding of the business and legal needs of clients by working for extended periods in their offices, hand-...

202- 530-6424
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