Additional changes to NEPA proposed—and more to come

The Council on Environmental Quality (CEQ) is currently engaged in a comprehensive review of the 2020 NEPA Regulations—find our thoughts on changes made to NEPA regulations here—following Executive Order (EO) 13990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. The order called for federal agencies to review existing regulations issued between January 20, 2017, and January 20, 2021, for consistency with the policy articulated in the EO and to take appropriate action.

As a preliminary step, CEQ issued an interim final rule on June 29, 2021. That rule amended the 2020 NEPA regulations requirement for agencies to propose changes to their existing NEPA supplemental procedures to make procedures consistent with the 2020 NEPA Regulations by September 14, 2021. CEQ extended the date by two years hoping to avoid agencies proposing changes to their implementing procedures in order to conform to a rule that is undergoing extensive review and will likely change in the near future. On Thursday, October 7, 2021, CEQ published in the Federal Register a notice of proposed rulemaking (NPRM) for Phase 1 of their proposed revisions to the 2020 NEPA Regulations, with a Phase 2 to follow later. 

Why was there a need for the proposed changes? 

In the NPRM, CEQ outlined several of their concerns with the 2020 NEPA Regulations, including: 

• The 2020 NEPA regulations limit the scope of NEPA analysis—with negative repercussions for environmental protection and environmental quality—including scope in critical areas such as climate change and environmental justice.  
• Portions of the 2020 NEPA Regulations may not reflect NEPA's statutory purposes to “encourage productive and enjoyable harmony” between humans and the environment. It may not promote efforts intended to prevent or eliminate damage to the environment and biosphere and enhance public health and welfare. 
• Some changes introduced by the 2020 NEPA Regulations may not support science-based decision making. Some changes may not be compatible with the administration's policies to improve public health, protect the environment, prioritize environmental justice, provide access to clean air and water, and reduce greenhouse gas emissions that contribute to climate change. 

What are the proposed changes? 

There are three proposed changes part of the Phase I NPRM: 

1. Purpose and need. The 1978 NEPA Regulations required that each environmental impact statement briefly state the underlying purpose and need to which the agency is responding in proposing alternatives, including the proposed action. The 2020 NEPA Regulations modified this by adding language that requires agencies to base the purpose and need on the goals of an applicant and the agency's authority when the agency's statutory duty is to review an application for authorization. The 2020 NEPA Regulations also made a similar addition to the definition of “reasonable alternatives” to carry over the new language on purpose and need. CEQ in the NRPM is proposing that this language be reverted to the language of the 1978 NEPA Regulations. CEQ is proposing this change as they believe that the language added by the 2020 NEPA Regulations requires an agency to always base the purpose and need on the goals of an applicant and the agency's statutory authority when an agency is reviewing an application for authorization. They further state that this language could be construed to require agencies to prioritize the applicant's goals over other relevant factors, including public interest.  
2. Agency NEPA procedures. Prior to the 2020 NEPA Regulations, federal agencies could develop NEPA procedures of their own to augment the CEQ regulations, as long as those procedures met or exceeded the degree of environmental review required by the CEQ regulations. The 2020 NEPA Regulations changed that by adding ceiling provisions such as stating that where existing agency NEPA procedures are “inconsistent” with the CEQ regulations, the CEQ regulations apply “unless there is a clear and fundamental conflict with the requirements of another statute.” The proposed rule removes these ceiling provisions as stated in the NPRM as they depart from CEQ's and federal agencies' prior understanding and practice that CEQ's NEPA regulations provide a floor for environmental review procedures. 
3. Definition of effects: CEQ proposes to restore the substance of the definitions of “effects” and “cumulative impacts” contained in the 1978 NEPA Regulations with some minor, non-substantive changes. The 2020 NEPA regulations used the term “effects” and eliminated the terms indirect and cumulative effects. It retained direct effects—without a definition—in what was stated at the time as a bid to resolve confusion. The NRPM also removes the following language that: (1) states a “but for” causal relationship is insufficient to make an agency responsible for a particular effect under NEPA; (2) generally excludes effects that are remote in time, geographically remote, or the product of a lengthy causal chain; and (3) fully excludes effects that the agency cannot prevent due to its limited statutory authority or would occur regardless of the proposed action. The NPRM states that CEQ is proposing “to remove these provisions in order to improve clarity on the types of effects that agencies must consider, eliminate restrictions that may conflict with scientific understanding of environmental outcomes, and better inform decision makers and the public about the full suite of reasonably foreseeable effects of a proposed action and its alternatives.”  

What changes are proposed in Phase 1 versus Phase 2? 

Phase 1 focuses on a narrow set of proposed changes to the 2020 regulations generally restoring regulatory provisions from the 1978 NEPA Regulations. In identifying what provisions to address in Phase 1, CEQ focused on the provisions that (1) pose significant near-term interpretation or implementation challenges for federal agencies and would have the most impact to agencies' NEPA processes during the interim period before a Phase 2 rulemaking is complete; (2) make sense to revert to the 1978 regulatory approach; and (3) CEQ is generally unlikely to propose to further revise in a Phase 2 rulemaking. 

In Phase 2, CEQ intends to issue a second NPRM to revisit more broadly the 2020 NEPA Regulations. CEQ also intends to propose further revisions to ensure that the NEPA process provides for efficient and effective environmental reviews that are consistent with the statute's text and purpose; provides regulatory certainty to federal agencies; promotes better decision making consistent with NEPA's statutory requirements; and meets environmental, climate change, and environmental justice objectives. 

What happens next? 

Publication of the proposed rule initiates a 45-day public comment period. During the comment period, CEQ plans to hold virtual public meetings and a virtual federal NEPA contacts meeting. The virtual public meetings are planned for October 19, 2021, from 1:00-4:00 p.m. EDT and October 21, 2021, from 5:00-8:00 p.m. EDT. Registration information can be found here.

After completion of the comment period in November, CEQ intends to finalize the rule. It will likely take CEQ months to review, categorize, and consider comments it will receive on this proposal. CEQ must also consider whether to modify the proposed regulations and whether to respond to comments.

As mentioned above CEQ is also actively working on Phase 2, which will take a broader and longer-term look at other possible changes to the NEPA regulations. The timing of that process is unknown. 

ICF has worked with federal agencies to comply with NEPA for many decades through changing interpretations of CEQ regulations, guidance, court rulings, and administrations. Wherever NEPA goes next, ICF is here to help.