United States: The Council on Environmental Quality partially restores the provisions of the National Environmental Policy Law
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The American Council on Environmental Quality (CEQ) has published a Final rule regarding the implementation of the National Environmental Policy Act (NEPA) regulations on Wednesday, April 20. As expected, the final version of the CEQ is almost identical to the earlier proposed rule and revises three separate NEPA provisions that the CEQ has identified as posing significant interpretation or short-term interpretation. implementation challenges for federal agencies. These three provisions include purpose and need, 40 CFR § 1502.13; Agency NEPA Procedures, 40 CFR § 1507.3; and the definition of “effects” or “impacts”. Ultimately, the CEQ’s final rule abandons revisions the agency made to NEPA regulations in 2020 and returns certain aspects of NEPA’s review to the old approach. CEQ noted that this review is the first of two phases, so additional NEPA regulatory reviews are expected later this year.
The final rule addresses three regulatory changes made by the 2020 NEPA revisions. A brief summary of these provisions follows.
- Statements of goals and needs. Under the final rule, an environmental impact statement (EIS) must again include a general statement of purpose and need when a federal action involves approving a proposal from a non-federal applicant. The rule removes the requirement for agencies to base the purpose of the EIS and the need for a project on the goals of a non-federal applicant. In its place, the final rule gives federal agencies the discretion to analyze a variety of factors, including the goals of a non-federal candidate. The final rule also conforms to the definition of “reasonable alternatives” to remove the reference to the goals of a non-federal candidate. This review appears to eliminate a streamlined approach to the environmental review of proposals from non-federal applicants. However, in response to comments opposing this revision, CEQ said it had not received any evidence that the revision would affect the environmental review process, including timelines, and that ambiguities in the current regulations further justify these revisions. .
- Agency NEPA Procedures. The final rule also removes “cap provisions” from the NEPA regulations enacted in 2020. These provisions have prevented federal agencies from imposing more stringent NEPA review requirements than those contained in the CEQ regulations. CEQ asserted, however, that these provisions hindered the ability of federal agencies to adopt a wide range of approaches for their agency-specific NEPA procedures. CEQ withdrew those provisions, explaining that the change would “promote better decision-making, improve environmental and community outcomes, and drive innovation that advances NEPA goals.” The CEQ clarified that “while agencies’ NEPA procedures must comply with CEQ regulations, agencies have the discretion and flexibility to develop procedures beyond the CEQ regulatory requirements, allowing agencies to address their specific programs, their statutory mandates and the contexts in which they operate.”
- “Effects” or “Impacts”. The CEQ Final Rule also revises the definition of “effects” or “impacts” in 40 CFR § 1508.1(g) to restore the original meaning contained in the 1978 rule by defining the “effects” and “impacts” of the same way and
- revise the introductory paragraph to define “effects” or “impacts” as “changes to the human environment resulting from the proposed action or alternatives” which include “direct effects”, “indirect effects and “cumulative effects” “that are reasonably foreseeable” (i.e., deleting the phrase “and have a reasonably close causal connection”)
- describing “direct effects” as “effects that occur at the same time and place” and “indirect effects” as “effects that are later in time or more distant in distance” and consistent with the definition of “cumulative impact”
- remove terms that restrict the definition of “effects” such as requiring a causal relationship “in the absence of” and “distant in time”
Although CEQ chose to retain the “reasonably foreseeable” clause in the definition of effects/impacts that it originally proposed to delete, CEQ retained the remaining parts of the proposed rule in order to be “consistent with policies of this administration to be guided by science and to address environmental protection, climate change and environmental justice.
Stakeholders who are currently undergoing a NEPA review, or embarking on such a journey in the coming months, should be aware that the scope of their environmental review and attention to reasonable alternatives could be wider. While much of the suspended and/or ongoing litigation regarding these aspects of the 2020 rules is now moot, additional challenges to the final rule may arise. Additionally, CEQ did not say whether the revised regulations will require agencies to adjust current NEPA revisions. In response to comments, however, CEQ noted that “agencies have sufficient discretion to apply their existing NEPA procedures in a manner not inconsistent with CEQ’s regulations.” In his announcement of the final rule, CEQ also noted that the “rule will not delay any ongoing project or review or add time to the NEPA process.” None of these statements prevent federal agencies from adjusting pending NEPA revisions once the final rule takes effect 30 days after it is published on May 20, 2022.
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