CEQ Issues Final Rule to Update NEPA Regulations

WASHINGTON, D.C.

For the first time in over 40 years, the Council on Environmental Quality (CEQ) comprehensively updated its regulations for Federal agencies to implement the National Environmental Policy Act (NEPA). The Final Rule was published in the Federal Register on July 16, 2020. It is an attempt to clarify and codify a wide range of NEPA case law and guidance documents such that the regulations can be applied more consistently across all federal agencies.  Subject to congressional review, the new NEPA regulations will take effect on September 14, 2020. There are several key takeaways:

(1)    The definition of “effects” has been revised, removing references to direct, indirect, and cumulative effects. The intent is to focus on effects that have a reasonably close causal relationship to the proposed action. This helps to cut the extent and duration of analysis, but it may not accurately reflect the potential combined effects of other projects in the area.

(2)    The definition of “major federal actions” is limited to actions that significantly affect the quality of the human environment, and now specifically excludes actions with “minimal federal funding or minimal Federal involvement.”

(3)    “Exhaustion” is a newly-defined term which specifies that parties may not initiate legal claims based on issues they did not raise during the public comment period.

(4)    The new limits on page count and review duration are 75 pages and 1 year for an Environmental Assessment (EA), and 150 pages and 2 years for an Environmental Impact Statement (EIS). It should be noted that time limits can be extended with approval of a “senior agency official” and page limits can be bypassed by moving detailed discussion to the appendices.

(5)    The use of Categorical Exclusions (CE) will likely be expanded since agencies are now able to use other agencies’ CEs, when appropriate.

The Final Rule is viewed by some as improving the efficiency and predictability of the NEPA process.  Others anticipate that the proposed changes could result in negative impacts to human health and the environment.  The controversial nature of many of these changes coupled with the upcoming presidential election in November creates a high potential for legal challenges and uncertainty for project approvals under the new NEPA regulations.

InterAgency’s environmental permitting experts will continue to track developments carefully and assist clients in effectively navigating the federal environmental review process. To discuss in detail, please reach out to InterAgency’s Environmental Director, Doug Chapin, at doug.chapin@interagency.biz.