Reed Smith Client Alerts

On July 15, 2020, the White House Council for Environmental Quality (CEQ) issued its final rule updating, clarifying, and modernizing its governing regulations of the National Environmental Policy Act (NEPA).1 The final rule, entitled “Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act,” is the first major comprehensive revision of NEPA since its promulgation in 1978.2 The goals of the final rule are to create a more efficient and timely NEPA review process, improve interagency coordination, and enhance state and tribal participation.3

Authors: Colette D. Honorable Daniella D. Landers Jennifer A. Smokelin Keturah A. Brown Grace C. Hearn

While the final rule will become effective September 14, 2020,4 activities such as congressional review and impending litigation will likely delay the effective date of the final rule. However, note that federal agencies have the authority to apply the provisions of the final rule to NEPA activities prior to the effective date.5 Federal agencies must develop or revise their own NEPA regulations in accordance with the final rule by September 14, 2021, within one year of the final rule going into effect.6

NEPA background 

Enacted in 1970, NEPA requires federal agencies to assess the environmental and related economic and social impacts of their proposed actions.7 NEPA applies to a wide array of proposed federal action, including permit applications, federal land management decisions, and highway and infrastructure construction. The CEQ is responsible for overseeing NEPA and ensuring that federal agencies meet their NEPA requirements.8 To that end, the CEQ has issued guidance documents to aid federal agencies during their NEPA review process.9

Over the years, the NEPA review process has received significant criticism for being complex, complicated, and lengthy. Lengthy reviews and related litigation have often times delayed significant projects.10 In 2017, the Trump Administration directed the CEQ to revise its NEPA regulations to implement a two-year review process completion goal for significant infrastructure projects.11 In 2018, the CEQ issued an advance notice of proposed rulemaking (ANPRM) requesting recommendations for modernizing its NEPA regulations.12 Earlier this year, the CEQ issued a notice of proposed rulemaking (NPRM) based on the recommendations collected from the ANPRM.13 For more information regarding the NPRM, please see our previous client alert, entitled “Proposed NEPA rulemaking accelerates environmental reviews.” 

Notable changes

The final rule makes significant modifications to the NEPA review process. These notable changes include: 

1. New presumptive time limits and page limits 

The final rule imposes a one-year time limit for environmental assessments (EAs) and a two-year time limit for environmental impact statements (EISs).14 The final rule also imposes page limits of 75 pages for EAs15 150 pages for standard EISs, and 300 pages for EISs that have an “unusual scope or complexity.”16 However, the time and page limits can be exceeded with the approval of a senior agency official.17

2. Greater guidance on environmental assessments 

While allowing federal agencies the flexibility to tailor EAs to the needs of a particular proposed action, the final rule provides increased guidance to federal agencies when drafting EAs. The final rule now instructs federal agencies to apply EIS provisions regarding methodologies and scientific accuracy, incomplete or unavailable information, and environmental review and consultation requirements to EAs.18