September 20, 2020

Volume X, Number 264

September 18, 2020

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NEPA: Re-Animated Or Is It Wee-Animated?

The National Environmental Act (42 U.S.C. § 4321, et seq.) (“NEPA”) passed in 1969, is the most litigated environmental statute in the country. In 1978 and 1986, the president’s Council on Environmental Quality (CEQ) wrote broad NEPA rules, animated now by 50 years of case law.[1]

NEPA was meant to ensure that agencies consider the consequences of and alternatives to their actions before moving forward with projects, but it has grown into a textual mongrel. NEPA environmental studies are often more than 500 pages long, and projects can require six or longer years of study. These requirements have been perceived to be stifling progress.[2] Earlier this year, however, CEQ timely proposed new rules to promote efficient, effective, and timely reviews (85 Fed. Reg. 1684 (2020)). The rules were finalized on July 15 and are expected to be fully effective this fall. There were some tears shed over the proposal, but the final rule seems to be a livable document, subject to more judicial refinement.

The basic NEPA requirements for federal actions have not changed, e.g., projects, permits, legislation, regulations, or funding. Three tiers of proactive study are established — (1) a categorical exemption (CE) — by agency rules generically listing minor projects that are exempt from further study, (2) an environmental assessment (EA) with a finding of no significant impact for projects without significant environmental effects, and (3) an environmental impact statement (EIS) for projects with significant environmental effects. Each tier is longer and more detailed than the last, with the third being for major federal projects having significant impacts.

Other requirements for the EIS still include a notice of intent, scoping, a draft EIS, public comment on draft and agency analysis, a final EIS, a record of decision, any required supplemental EISs, pre-decision referrals of EISs to CEQ, incorporation of or tiering on other studies, filing, an Environmental Protection Agency (EPA) review, timing of action, and action agency supplemental rules. There is no one NEPA czar on federal projects; each lead action agency performs reviews on its own projects, subject to judicial or CEQ/EPA review.

Many of the most of the robust changes in the proposal remain in the final rule, although a few tweaks were added to soften it, as discussed below.

So that NEPA delays are reduced, EAs are normally to be subject to one-year and 150-page limits, with EISs subject to two-year and 300-page limits. (Other laws also streamline certain NEPA projects, e.g., Fixing America’s Surface Transportation — or FAST — Act (Pub. L. 114-94).) This change may speed up the process.

CEQ now emphasizes that “major” federal projects and “significant” effects are not synonymous but are instead different requirements. (§ 1508.1 (q); CEQ prepublication preamble to the final rule at p. 169.) Major projects exclude those that federal agencies have minimal involvement in, control over, or funding responsibility for. This is a new twist. Before 2020, major and significant were complementary, not separate. Once deemed major, all “reasonably foreseeable”, significant effects now include primarily physical impacts to the human environment that must be evaluated. (§ 1508.1, e.g., social impacts may be added to the analysis if physical impacts are significant.) Effects exclude those that are remote in time, those that are remote geographically, those that involve a lengthy causation chain, and those that the agency has no authority to prevent. This change may reduce the types of projects or effects subject to an EIS.

The “purpose and need” (§ 1502.3) for an EIS shall be based on the goals of the agency as well as the applicant (in permit contexts). This may benefit private interests, as the more narrow the scope of a project, the fewer alternatives to it there will be.

“Alternatives” (§ 1502.14) remain the linchpin of NEPA. No action and the agency’s preferred alternative (if any) need to be identified. This includes mitigation measures. A reasonable number of detailed alternatives that are technically and economically feasible and meet the project goals need to be discussed and compared (§ 1508.1(2)). Suboptimal alternatives (e.g., those beyond the lead agency’s authority, those that are infeasible, infinite variations) may be eliminated from detailed study. This may shorten the NEPA process.

“Incomplete or unavailable information” (§ 1502.21) must be identified if impacts are reasonably foreseeable and supported by credible scientific evidence. This helps agencies avoid complete unknowns or speculative worst case scenarios.

Comments (§ 1505.3) to the EIS must be specific and timely under action agency rules, or they are considered forfeited. This impacts citizen participation, but is better than the hard 30-day stop in the proposal.

Normally within 12 months after the CEQ regulations are final, each action agency must develop its own procedure to implement the new NEPA rule (§1507.3). There are more agency NEPA regulations to come.

Perhaps the most daring change is the removal of the phrase “indirect or cumulative effects” from the definitions. This apparently narrows consideration of effects such as global warming. However, in the NEPA rule preamble, undoubtedly prompted by public comments, CEQ still stresses that the rule does not preclude consideration of impacts on climate change and “predictable trends” in specific circumstances. (CEQ rule prepublication preamble at pp. 160-166.) Some public interests retain hope for the future for climate change study.

Nondiscretionary agency actions, extraterritorial projects, statutory mandates, CEs, certain emergencies, etc. remain partially or fully exempt for EISs.

While the new rule does narrow the reach of NEPA, some long-term issues still remain for future agency or judicial action. The rule is currently being challenged in the courts. 


[1] Some 10 to 20 states also have mini-NEPAs. “State Environmental Policy Acts on Ballotpedia.” However, Louisiana with its NEPA-like public trust doctrine was not counted.

[2] This prompted a Reagan-era joke that if NEPA had existed at the time of Moses, instead of coming down from Mount Sinai with the Ten Commandments, he would have come down with a hernia.

© 2020 Jones Walker LLPNational Law Review, Volume X, Number 224

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About this Author

Stanley Millan, Litigation Attorney, Jones Walker Law Firm
Special Counsel

Stan Millan is a member of the firm's Business & Commercial Litigation Practice Group, and he divides his practice between transactional and litigation work. His practice consists of environmental law, administrative law, green and government contracts law. He is LEED® AP-certified by the U.S. Green Building Council. Mr. Millan's practice extends to the entire panoply of air, water, and waste regulation, including compliance counseling and defense before the U.S. Environmental Protection Agency (EPA), the Louisiana Department of Environmental Quality (LDEQ), and...

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Robert Holden, Jones Walker Law Firm, New Orleans, Environmental Law Attorney
Partner

Robert Holden is a partner in the firm's Environmental Practice Group. Drawing on his deep understanding of the law and fortified by decades of experience in the field, he provides clients with practical, lawful solutions to environmental and other legal challenges, including regulatory compliance and enforcement actions, responses to spills and other industrial accidents, and commercial litigation. Mr. Holden's clients include energy, chemicals, manufacturing, and other clients with significant operations across the southeastern United States and in the Gulf of Mexico.

504-582-8139