CEQ Announces Major Overhaul of NEPA Regulations

2020 Environmental Real Estate IssuesThe Council on Environmental Quality (CEQ), the division of the executive office of the president that coordinates federal environmental efforts, released a notice of proposed rulemaking on January 9, 2020. The proposed rule would be the first major update of the National Environmental Policy Act (NEPA) regulations in 40 years.

NEPA Requires Federal Agencies to Analyze the Environmental Impacts of their Actions NEPA is the statute that requires federal agencies to examine the environmental impacts of their actions, such as issuing permits or providing funds for highway construction. The typical process involves an initial determination if the federal action is covered by a categorical exclusion from the NEPA process. If not, the agency performs an environmental assessment (EA), which either leads to a finding of no significant impact or preparation of an environmental impact statement (EIS).

Modernize and Clarify NEPA Regulations According to a CEQ press release, the proposed rule would modernize and clarify regulations to facilitate more efficient, effective, and timely NEPA review of federal action. The proposed rule seeks to reduce unnecessary paperwork and delays, and promote better decision making consistent with statutory requirements.

Goal of Shortening the Time for NEPA Analysis A fact sheet issued by CEQ suggests the new rule will facilitate efficient reviews by encouraging greater use of categorical exclusions and streamlining the EA process.  It will establish presumptive time limits of two years for completion of an EIS and one year for completion of an EA; it will also allow applicants and their contractors a greater role in preparing the EIS.

Analysis of Cumulative Effects One provision that will certainly trigger negative comments, and probably litigation, is the statement that NEPA does not require analysis of cumulative effects. Those opposed will say this will allow projects to receive federal permits or funding without determining the potential cumulative effect on climate change and other global or regional environmental concerns.

Comment Period Ends March 10 CEQ will accept comments on the proposed rule through March 10, 2020.  For links to the press release, fact sheet, and text of the proposed rule https://www.whitehouse.gov/ceq/nepa-modernization/