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
3. Increasing flexibility with the scoping process
Scoping is the process by which federal agencies determine the scope of issues for examination in the EIS.19 Rather than requiring publication of a notice of intent (NOI) as a precondition for scoping, the final rule now permits federal agencies to begin scoping once the proposed action is ready for meaningful agency consideration.20 Scoping can now include “pre-application procedures or work” conducted before NOI publication.21 Federal agencies must invite relevant stakeholders to participate so that pertinent data and information can be collected.22 The increased flexibility places a greater emphasis on early information collection that was not present in the previous regulations.
4. Clarifying categorical exclusions
The final rule adds a categorical exclusions (CEs) section to provide greater guidance to the processes that agencies employ in determining whether a proposed action can be classified as a CE under NEPA. CEs are categories of proposed actions that generally do not have significant effects on the human environment and therefore do not require a comprehensive environmental review.23 Federal agencies must determine whether the proposed action for which a CE would normally apply may have a significant impact.24 The final rule clarifies that the mere existence of extraordinary circumstances does not automatically preclude the application of a CE.25
5. Codifying the One Federal Decision Policy
The final rule codifies provisions of the One Federal Decision Policy (OFD), which was established by Executive Order 13807 in order to improve interagency coordination and promote timely reviews.26 Where multiple federal agencies have authority over a proposed action, the agencies must develop either one EIS and a joint record of decision (ROD), or one EA and a joint finding of no significant impact (FONSI).27
6. Narrowing the scope of environmental “effects” of a major federal action
The final rule also narrows the scope of effects that agencies are required to consider during the approval process of infrastructure projects.28 The final rule eliminates “cumulative impacts” as well as the “direct,” “indirect,” and “cumulative” effects.29 Federal agencies must now consider changes to the human environment effects that are “reasonably foreseeable” and have a “reasonably close causal relationship to the proposed action.”30 Further, a “but for” causal relationship is an insufficient trigger for federal agency obligations under NEPA.31 The definition of “effects” also provides that the close causal relationship concept is “analogous to proximate cause in tort law.”32 Effects are not significant if they are “remote in time, geographically remote, or the result of a lengthy causal chain.”33 Federal agencies can still consider the impact of the proposed action on a specific aspect of the human environment, and should consider predictable trends.34
An uncertain future
The final rule has garnered attention and evoked responses from several stakeholders connected to the NEPA review process. Proponents applaud the final rule for its streamlined review process and reduction in costs. Opponents criticize the final rule for its insufficient review process and inadequate consideration of climate change effects. Opponents note that certain disadvantaged groups and communities of color will likely be adversely affected by a shortened review process. Legal challenges to the final rule, coupled with congressional review and the upcoming November elections, further exacerbate the uncertainties of the NEPA review process. Such activities could create more confusion and stall, or even prevent, the final rule from going into effect.
- Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 FR 43304 (July 16, 2020).
- 85 FR 43304.
- 85 FR 43358.
- 85 FR 43372.
- 85 FR 43372-73.
- 85 FR 43373.
- 85 FR 43305.
- 85 FR 43305.
- 85 FR 43305.
- 85 FR 43305.
- Executive Order 13807, 82 FR 40463 (Aug. 24, 2017).
- Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 83 FR 28591 (June 20, 2018).
- Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 FR 1684 (Jan. 10, 2020).
- 85 FR 43362-63.
- 85 FR 43360.
- 85 FR 43364.
- 85 FR 43360; 85 FR 43364.
- 85 FR 43360.
- 85 FR 43362.
- 85 FR 43362.
- 85 FR 43362.
- 85 FR 43362.
- 85 FR 43360.
- 85 FR 43360.
- 85 FR 43360.
- Executive Order 13807, 82 FR 40463 (Aug. 24, 2017).
- 85 FR 43361.
- 85 FR 43343.
- 85 FR 43343.
- 85 FR 43375.
- 85 FR 43375.
- 85 FR 43343.
- 85 FR 43375.
- 85 FR 43375.
Client Alert 2020-457
