Council on Environmental Quality Announces Plan to Restore NEPA Provisions
On October 6, the White House Council on Environmental Quality announced that it would undertake significant changes to the current regulations governing federal agencies’ evaluations of their actions under the National Environmental Policy Act. CEQ described the proposed rulemaking in more detail in a Federal Register Notice published on October 7. See 86 FR 55757 (Oct. 7, 2021).
The current regulations, promulgated in a July, 2020 rulemaking by the Trump Administration, have been criticized as a significant roll-back of NEPA’s scope and procedural protections. In particular, the 2020 rule abandoned the long-standing requirement that agencies evaluate the cumulative and indirect effects of their actions, instead requiring that they consider only effects that are reasonably foreseeable and with a reasonably close causal relationship to the proposal. The 2020 rule also forbade federal agencies from analyzing any effects that the agency had no authority to prevent, prohibited NEPA regulations which were inconsistent with the CEQ regulations, and required agencies to define the purpose and need of the project under review exclusively with reference to the project proponent’s goals.
The current CEQ proposal would undo these changes. As described in the Federal Register announcement, the agency will follow a phased approach to the rulemaking. Phase I will focus on “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.” 86 FR 55759.
To address the perceived shortcomings of the 2020 regulation, CEQ has proposed three primary changes for Phase I of the rulemaking. In general, these changes revert to the prior language of the regulations which was in effect before the 2020 rulemaking. Specifically, the Phase I rulemaking will:
Revise § 1502.13 of the regulations to clarify that the purpose and need statement in an EIS need not be constrained to the specific goals of the applicant, and should permit agencies to consider other factors, including the public interest, thereby permitting the consideration of a wider range of alternatives.
Revise § 1507.3 to clarify that federal agencies have discretion to develop their own procedures beyond the CEQ regulatory requirements, so long as those procedures are consistent with the CEQ regulations and NEPA. This revision will essentially set the CEQ regulations as a “floor” rather than a “ceiling” for NEPA review procedures.
Revise § 1508.1(g) to restore the prior definitions of “effects” and “impacts,” including prior definitions of “indirect” and “cumulative impacts.” CEQ will also eliminate language in the 2020 regulations requiring a reasonably foreseeable relationship between the agency action and the effects considered and stating that a “but for” relationship between the action and effects is insufficient. Language preventing an agency from considering effects or impacts it has no jurisdictional authority to address will also be removed.
Phase 2 will entail a second notice of proposed rulemaking to encompass a broader review of the 2020 regulations “and 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.” 86 FR 55759.
The Federal Register Notice is available at: https://www.federalregister.gov/documents/2021/10/07/2021-21867/national-environmental-policy-act-implementing-regulations-revisions
CEQ’s announcement of the rule making is available at: