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NEPA-calypse Now?

What the Council on Environmental Quality’s Proposed Rulemaking Means for Future Infrastructure Projects

On New Year’s Day in 1970, Richard Nixon signed the National Environmental Policy Act of 1969 (“NEPA”), creating the Council on Environmental Quality (“CEQ”) and proclaiming “that the 1970s must be the years when America pays its debt to the past by reclaiming the purity of its air, its waters, and our living environment.” Like mood rings and lava lamps, after a half-century the luster of NEPA has dimmed.  The statute appears an antiquated relic from the decades before the adoption of the Endangered Species Act, Clean Air Act, Clean Water Act, RCRA, and CERCLA, a suite of laws that ushered in the modern regulatory regime and that in the process made many NEPA reviews superfluous.  In an effort to clear the regulatory cobwebs, on January 9, 2020, the CEQ proposed regulations that would somewhat streamline the scope of review required by NEPA.

Marking the first comprehensive update to the CEQ’s regulations since their promulgation in 1978, the rule seeks to narrow—but not eliminate—review under the statute. Proposed changes include:

  • Excluding from review non-federal projects with minimal federal funding or federal involvement, where the reviewing agency does not control the outcome of the project;

  • Revising the scope of effects reviewed from the current list of “direct, indirect, and cumulative” effects to “reasonably foreseeable” effects “with a reasonably close causal relationship”—in other words, eliminating the consideration of “cumulative” impacts;

  • Establishing time limits for the completion of Environmental Assessments (“EAs”) and Environmental Impact Statements (“EISs”) (one and two years, respectively); and

  • Creating page limits for EAs and EISs of 75 and 300 pages respectively, unless a senior agency official of the lead agency approves in writing a longer review.

The rulemaking was published in the Federal Register on January 10, 2020, triggering a 60-day public comment period ending March 10.  85 Fed. Reg. 1684 (Jan. 10, 2020).  Public hearings will be held on the proposed rules in Denver on February 11, and Washington, D.C., on February 25.  After received comments are reviewed and addressed, CEQ will finalize the proposal, likely in the fall.

The ultimate fate of the proposed change is far from certain. While CEQ Chair Mary B. Neumayr stated in an op-ed that the proposed changes “would . . . reduce unnecessary burdens and delays and would make important clarifications to improve the decision-making process,” critics have characterized the proposal as “nothing more than an attempt to write Donald Trump’s climate denial into official government policy” and have all but promised to bring suit to stop the rulemaking from taking effect.  However, even if the rule is challenged in the federal courts, so long as it is in effect it may influence decisions in states like Wisconsin that use the CEQ guidelines to implement state-equivalents of NEPA.

© 2020 Foley & Lardner LLP

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About this Author

Peter Tomasi, Foley Lardner, Environmental lawyer, regulations, environmental issues,
Of Counsel

Peter A. Tomasi is of counsel and a business lawyer with Foley & Lardner LLP, where he is a member of the firm’s Environmental Regulation Practice. His practice focuses on regulatory compliance and renewable energy. Mr. Tomasi has further experience with general civil, commercial, and intellectual property litigation.

Representative Experience

  • Representation of logistics providers and reverse distributors in rulemaking and enforcement matters involving hazardous waste pharmaceuticals
  • ...
414-297-5621
David Bates, Foley Lardnre Law Firm, Houston, Environmental and Energy Law Attorney
Of Counsel

For more than 30 years, David Bates has been handling cases in the energy and environmental law arena with complex issues and large stakes, attracting both U.S. and foreign clients, such as business owners, investors and other stakeholders with significant investments in Texas and elsewhere. Disputes are often centered around oil and gas mineral leases, including royalty disputes, joint operating agreements, and purchase and sale agreements, often involving unconventional shale properties. His legal representation includes contract interpretation, assistance with environmental regulatory compliance related to hydraulic fracturing, and assistance with legal issues surrounding traditional drilling and injection wells. David is uniquely skilled at assisting clients with Superfund (CERCLA) litigation, site remediation and cost allocation, as well as assessing environmental risks in connection with real estate and M&A transactions. Not limited to courtroom debates, David also has extensive experience with arbitration and other alternative dispute resolution mechanisms, having successfully completed a number of large arbitrations over the last five years.

David takes a unique approach to large energy and environmental cases. He analyzes the business and legal risks as well as the cost of protracted litigation – determining whether avoiding litigation altogether or getting out quickly may be the best strategic option for his client. When that is not possible or advisable, David works hard to learn every aspect and nuance of the issues in a case, making smart, tactical moves in the most efficient way, based on his deep understanding of the industry and the science. David adds value to a case from hour one.

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