July 16, 2020
President Donald Trump and the Council on Environmental Quality (CEQ) announced a final rule July 15 to comprehensively update and modernize National Environmental Policy Act (NEPA) regulations for the first time in more than 40 years. The NEPA updates make the process more efficient and timely while also laying the groundwork for healthy and resilient open spaces and pastureland, supporters say.
NEPA regulations control how the federal government processes environmental permits, but the law has often been used to block and delay important infrastructure projects. The new regulations will modernize, simplify and accelerate the environmental review process necessary to build a wide range of projects in the U.S., including roads, bridges and highways. The rule will also provide needed certainty for project sponsors and will facilitate the rebuilding of America, according to Rep. Dan Newhouse (R.,Wash.), who added that NEPA, in its current form, exemplifies “bureaucratic red tape” – with evaluations taking up to six years to complete.
Many of the changes are welcome and will improve the environmental review process under NEPA, “but some are highly controversial and appear to undermine NEPA’s goal of placing consideration of a project’s environmental effects on the same level as economic and other considerations," said Thaddeus Lightfoot, a partner at the international law firm Dorsey & Whitney who has spent almost three decades specializing in environmental law.
Many of the modifications will improve the NEPA environmental review process, which often takes too long and costs too much. For example, the final rule establishes a presumptive time limit of two years for the preparation of environmental impact statements (EISs) and one year for the preparation of environmental assessments (EAs), along with presumptive page limits.
“The presumptive time and page limits, which federal agencies may modify for more complex projects, should encourage more efficient action by agencies,” Lightfoot said.
When a NEPA review of a single project involves multiple agencies, which is common for larger projects with a number of environmental permits and approvals, the new rules require federal agencies to establish joint schedules, prepare a single EIS and issue a single record of decision approving the EIS, where appropriate.
“Lead federal agencies also will have a stronger role in resolving disputes with other agencies cooperating in the NEPA review process, and the rules should reduce duplication by facilitating use of documents prepared by state, tribal and local agencies to comply with NEPA," Lightfoot said.
Still, certain provisions in the new rule appear to undermine NEPA, Lightfoot added. The most significant change in the CEQ rules is the modification of the definition of the term “effects.” The term is undefined in NEPA’s statutory language, but the former CEQ rules defined both direct and indirect effects. The former rules also required an evaluation of “cumulative impacts,” defined as a project’s incremental impact “when added to other past, present and reasonably foreseeable future actions.”
The new CEQ rule no longer expressly eliminates cumulative impact analysis, as did the proposed version of the rule published for public comment in January 2020, but the final rule still eliminates the distinction between “direct” and “indirect” effects and repeals the “cumulative impact” definition. In place of the former definitions, the new CEQ rule requires analysis of only those “effects” that are reasonably foreseeable and have a reasonably close causal relationship” to the proposed action.
In making these changes, the new rule appears to be an attempt to narrow the scope of NEPA analysis and potentially eliminate the need to assess climate change in NEPA reviews. Although numerous federal courts hold that climate change must be a part of a NEPA review, CEQ claims that it may change the rule because “the terms direct and indirect effects and cumulative impact do not appear in the statute, and thus, their use is not required by NEPA.”
“That conclusion is certain to draw a legal challenge," Lightfoot said.
Agricultural groups, including the Agricultural Retailers Assn. (ARA) and the National Cattlemen’s Beef Assn. (NCBA), offered their support for the changes.
ARA president and chief executive officer Daren Coppock said, "The final rule will speed up the approval process for much-needed infrastructure projects, which will especially benefit the rural communities in which ag retailers and their customers live and work.”
Coppock said he does not believe the rule compromises environmental reviews or public input but, in fact, will enhance the public's involvement through better coordination of hearings and more concise, accessible documents for review. ARA was part of the Unlock American Investment Coalition composed of 50 organizations. On March 10, ARA signed comments from the coalition in support of the CEQ's proposed rule to reform NEPA.
“The modernized NEPA rule brings common sense back to an important rule that was established to protect our land and water resources,” NCBA president Marty Smith said. “President Trump and his team at the Council on Environmental Quality embraced a once-in-a-generation opportunity to ensure this country has the strongest possible environmental policy for years to come. American ranchers that care for hundreds of millions of acres of private and public lands across the United States know the importance of implementing timely improvements based on the best knowledge at hand. These changes ensure NEPA does not delay good management practices.”
Public Lands Council president Bob Skinner added that the rule recognizes the severe limitations of a policy that had not been updated in more than 40 years. “Over the last four decades, ranchers learned and adapted to new needs of wildlife and other rangeland users, but outdated NEPA policy prevented us from responding to many critical situations. The changes finalized bring NEPA up to date, focus the attention on the real issues at hand and ensure the government is avoiding speculative and duplicative environmental reviews,” Skinner stated.
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