On Jan. 10, 2020, the Council on Environmental Quality (“CEQ”) proposed complete and comprehensive revisions to the federal regulations that govern implementation of the National Environmental Policy Act (“NEPA”). 85 Fed. Register 1684 (Jan. 10, 2020). These are the first substantive revisions to the regulations since they were initially promulgated in 1978.
The NEPA regulations specify how federal agencies will implement NEPA when making decisions that may significantly affect the environment. The regulations require preparation of environmental assessments (“EAs”) and environmental impact statements (“EISs”) to evaluate and disclose the potential environmental effects associated with federal actions.
The preamble to the proposed revisions explains that the time and length of NEPA documents continue to increase, despite Presidential and Congressional efforts to make the process more efficient and effective. Between 2010 and 2017, CEQ found that the average time for completion of an EIS and issuance of a final decision was more than four-and-a-half years. Twenty percent of EISs took more than six years.
These delays can be particularly significant and expensive for private applicants who seek authorization to operate on federal lands managed by the Bureau of Land Management and U.S. Forest Service. Mines, oil and gas leasing and development, transmission lines, energy and water pipelines and renewable energy projects have all been affected by agency NEPA compliance.
The proposed regulations include proposed changes that would directly affect private projects on federal lands:
- Applicants would be allowed to prepare NEPA documents, including EISs, provided that the federal agency independently evaluate the document and take responsibility for its scope and content.
- Agencies would be required to conform NEPA analysis to the “purpose and need” of private applicants and to consider only reasonable alternatives that meet the goals of the applicants.
- The scope of environmental “effects” to be analyzed would be narrowed to those effects that are “reasonably foreseeable, related to the proposed action . . . and subject to the agency’s jurisdiction and control.” Effects would not be considered significant if they are “remote in time, geographically remote, or the result of a lengthy causal chain.” This standard would replace the current requirement that agencies identify and evaluate direct, indirect and cumulative effects of proposed actions. The regulations specifically eliminate the requirement for analysis of potential cumulative effects of the proposed action together with past, present and reasonably foreseeable future actions.
- The rules also propose presumptive time and page limits for environmental documents: one year and 75 pages for EAs, two years and 300 pages for EISs. Those limits could be extended by “senior agency officials” in appropriate circumstances.
The proposed rules also codify recent streamlining practices that have been adopted by the federal government, including the One Federal Decision rule (requiring a single of joint record of decision by federal agencies), early input from cooperating agencies (federal, state and local) and timely and specific comments from the public and other agencies on draft NEPA documents.
CEQ is also seeking comment on other changes to the proposed rules. For example, in comments to CEQ earlier this year, the mining industry suggested that the rules exempt from detailed NEPA analysis impacts to resources that are governed by substantive environmental laws and statutes, primarily air quality, water quality and storage and transportation of hazardous wastes.
The deadline for comments on the proposed regulations is March 10, 2020. For questions about this or other NEPA-related matters, contact Jim Butler by sending an email to jbutler@parsonsbehle.com or call (801) 532-1234 or (775) 323-1601.
