Reed Smith Client Alerts

On January 10, 2020, the Council on Environmental Quality (CEQ) issued a notice of proposed rulemaking (NPRM) recommending extensive changes to the governing regulations of the National Environmental Policy Act (NEPA).1 In order to expedite the development of federal projects across the country, the CEQ proposes to streamline the environmental review process required under NEPA. Among other modifications, the NPRM accelerates the NEPA timetable, clarifies the scope of NEPA review, and facilitates coordination with NEPA stakeholders.

The proposed revisions to NEPA’s regulatory architecture promise to have wide-ranging effects on the energy, environmental, and infrastructure sectors. Comments on the NPRM must be submitted by March 10, 2020. Public participation is an essential part of the rulemaking process and can have a major impact on the final rules. Indeed, on January 21, 2020, more than 100 Democratic legislators sent a letter to the CEQ urging the agency to extend the comment deadline to allow for more public input. This alert discusses NEPA, identifies five aspects of the proposed modifications that could warrant comment, and provides a more detailed look at some of the proposed changes.

Authors: Colette D. Honorable Jennifer A. Smokelin Todd O. Maiden Randa M. Lewis

NEPA overview

NEPA states a broad national policy to “prevent or eliminate damage to the environment” and “enrich the understanding of the ecological systems and natural resources important to” the United States.2 At its core, NEPA requires the federal government to take a “hard look” at the environmental consequences of its actions by engaging in a thorough and public environmental review and planning process.3 Under NEPA, whenever major federal actions will significantly affect the environment, federal agencies must incorporate informed and careful consideration of environmental impacts into their decision-making processes.4 Agencies must also apprise the public of the environmental concerns they assessed and enable the public to participate in determining how those agencies will proceed. NEPA, therefore, is a procedural statute; it does not prescribe substantive outcomes. Instead, NEPA “prohibits uninformed – rather than unwise – agency action”5 and ensures that federal agencies engage in “fully informed and well-considered” decision-making.6

Critics of NEPA contend that the NEPA framework unnecessarily draws out the environmental review process, thus hindering the progress of worthwhile federal projects. In 2017, the Trump Administration directed the CEQ, the agency vested with primary responsibility for NEPA, to revamp its regulations to provide a two-year goal for completing environmental reviews for major infrastructure projects.7 Accordingly, the CEQ issued an advance notice of proposed rulemaking (ANPRM) in 2018 to request recommendations to modernize NEPA’s governing regulations.8 The CEQ crafted the NPRM based on the feedback gleaned from the ANPRM comment process.

In its current form, the NEPA review process first requires federal agencies to evaluate whether new legislation or other major federal actions will “significantly affec[t] the quality of the human environment.”9 This analysis guides whether the agency can claim a categorical exclusion (CE)10 from NEPA review or whether the agency must prepare an environmental assessment (EA)11 or an environmental impact statement (EIS).12 A CE is a category of agency actions that the agency previously determined do not individually or cumulatively produce significant environmental effects.13 If the proposed agency action is not included in the list of CEs maintained by the agency, the agency must prepare an EA or an EIS.