Revisions to NEPA Proposed to Unlock American Investment
by: Kathy G. Beckett of Steptoe & Johnson PLLC  -  Know How: Alert
Friday, February 14, 2020
NEPA Updates American investment

President Trump and the White House Council on Environmental Quality (CEQ) issued proposed regulations on January 10, 2020 to modify the regulatory program for the National Environmental Policy Act (“NEPA”), that requires federal agencies consider the environmental consequences of their actions when they are in the decision-making process to issue approvals, permits, or authorizations.  Projects that are of a nature to require federal action must undergo an Environmental Assessment and perhaps trigger the development of an Environmental Impact Statement.   Over the past forty some years, the NEPA regulatory process grew to become timeless and unwieldy as agencies, the public, and industry wrangled with the issue of environmental review of industrial development and ultimate approval for construction. President Trump framed the issue as follows, “In the past, many of America’s most critical infrastructure projects have been tied up and bogged down by an outrageously slow and burdensome federal approval process. . . These endless delays waste money, keep projects from breaking ground, and deny jobs to our nation’s incredible workers.”

This recent proposed NEPA rulemaking is noteworthy because it represents a comprehensive update that has not occurred since the initial promulgation in 1978.  As stated by CEQ Chairwoman Mary Neumayr during President Trump’s press conference on January 9, 2019, “The goal of NEPA is to ensure well-informed decision-making.  But the process can be unnecessarily complex, burdensome, and protracted.  A lengthy process can delay or even derail important projects to modernize our nation’s infrastructure, manage our federal lands and waters, and restore our environment.”  

The regulated community has generally embraced revision to the NEPA program to allow more timely processing of appropriate studies and assessments, while ensuring the protection of the environment.  Increased costs for permitting and NEPA review and the unpredictability of timing for approvals, investors in economic development have become more difficult to find.  As President Trump championed his desire to bring to the United States new investments, infrastructure improvements and jobs, the issue of NEPA as a barrier to economic growth became magnified.  The President learned nothing of any size can be built without passing the NEPA test, but the NEPA review process is an uncertain particularly with regard to anticipated timing and cost of securing completed review.

Tom Donohue, CEO of the U.S. Chamber of Commerce issued a statement on January 10, 2020 announcing the new coalition the Chamber is leading called, Unlock American Investment, “If America is to meet its growing challenges on infrastructure, energy and the environment, then we must modernize the 40-year old NEPA process. In many cases, it takes far longer to obtain a permit than it actually takes to build one of these critical projects, and that should not be acceptable.  That’s why the Chamber strongly supports the Administration’s efforts to streamline permitting processes, and why we are leading a broad coalition representing the business community and workers to support the new rule. We support NEPA’s requirement for environmental reviews and public input. But too often, the current rules are used as a tool to obstruct important projects, such as highways, bridges, public transit and even renewable energy projects. Reducing delays and uncertainties associated with infrastructure investment and related projects will allow businesses to plan and invest with confidence while enhancing economic productivity and supporting more and better-paying jobs throughout the country.”

To illustrate the level of interest in this proposal, comments submitted to the docket thus far exceed 3,600.  The comment period closes on February 25, 2020.     

In this proposed rule, CEQ would revise and modernize its NEPA regulations to facilitate more efficient, effective, and timely NEPA reviews by Federal agencies. The proposed updates and clarifications to its regulations are based on CEQ's record evaluating the implementation of its NEPA regulations and on comments provided in response to the ANPRM.

The following is a summary of the CEQ proposal found at 85 Fed. Reg 1684, (January 10, 2020). 

  • Procedural Emphasis.  CEQ specifically proposes revisions to align the regulations with the text of the NEPA statute, emphasizing the procedural nature of section 102(2) of NEPA.  The proposed changes ensure that the agency, in reaching its decision, will have available and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience.

  • Resource Management.  CEQ proposes revisions to ensure that environmental documents prepared are concise and serve their purpose of informing decision makers regarding the significant potential environmental effects of proposed major Federal actions and the public of the environmental issues in the pending decision-making process.   CEQ proposes revisions to ensure that the regulations reflect changes in technology, increase public participation in the process, and facilitate the use of existing studies, analyses and environmental documents prepared by states, tribes, and local governments.

  • Optimal Interagency Coordination and Timing.    CEQ proposes revisions for multi-agency review and related permitting and other authorization decisions. The revisions promote interagency coordination and more timely and efficient reviews.  CEQ proposes to codify and make generally applicable a number of key elements from expedited procedures, including development by the lead agency of a joint schedule, procedures to elevate delays or disputes, preparation of a single EIS and joint ROD to the extent practicable, and a two-year goal for completion of environmental reviews.  

  • Documentation, Scoping, and Timing.  CEQ proposes to clarify the process and documentation required for complying with NEPA by adding sections on threshold considerations and determining the appropriate level of review; add a section on CEs; and revise sections on EAs, FONSIs, and EISs.  CEQ further proposes a number of revisions to promote more efficient and timely environmental reviews, including revisions to promote interagency coordination relating to lead, cooperating agencies, timing of agency action, scoping, and agency NEPA procedures. CEQ proposes additional revisions to promote a more efficient and timelier NEPA process relating to applying NEPA early in the process, scoping, tiering, adoption, use of current technologies, and avoiding duplication of state, tribal, and local environmental reviews; revisions provide for presumptive time and page limits.

  • Public Participation.  CEQ includes provisions to promote informed decision-making and to inform the public about the decision-making process. CEQ proposes amendments to ensure agencies solicit and consider relevant information early in the development of the draft EIS. In particular, CEQ proposes to direct agencies in the notice of intent (NOI) to request public comment on potential alternatives and impacts, and identification of any relevant information and analyses concerning impacts affecting the quality of the human environment.

  • Agency Record. CEQ proposes to direct agencies to include a new section in the draft and final EIS summarizing all alternatives, information, and analyses submitted by the public and to request comment on the completeness of the summary included in the draft EIS.  CEQ further proposes to ensure that comments are timely submitted on the draft EIS and on the completeness of the summary of information submitted by the public, and that comments are as specific as possible. Additionally, CEQ proposes a provision to require that, based on the summary of the alternatives, information, and analyses section, the decision-maker for the lead agency certifies that the agency has considered such information. This will ensure that EISs are supported by evidence that agencies have made the necessary environmental analyses. Upon certification, the proposed provisions would establish a conclusive presumption that the agency has considered such information. In conjunction with the certification requirement, this presumption is consistent with the longstanding presumption of regularity that government officials have properly discharged their official duties.

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