CEQ Moves to Reinstate Three Key NEPA Provisions Removed Under Trump Administration

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The White House Council on Environmental Quality (CEQ) announced today that it is initiating a rulemaking to restore three important procedural provisions of the National Environmental Policy Act (NEPA) that will apply to environmental reviews for a wide range of federal projects, including those of private developers that require federal permits.

In summer 2020, CEQ promulgated significant changes to NEPA rules, described in our client alert, which significantly reduced the scope of and timeline for federal NEPA review.  Now, under the new administration, CEQ is proposing to reverse many of those changes in two phases. 

Phase 1 of the proposed rule would make the following three important changes to the 2020 NEPA rules:

  1. Restore the requirement that federal agencies evaluate the “direct,” “indirect,” and “cumulative” impacts of a proposed decision, including by evaluating a full range of climate change impacts and assessing the consequences of releasing additional pollution in environmental justice communities.  The 2020 NEPA rule eliminated references to direct, indirect, and cumulative impacts to focus agencies on analysis of effects that are reasonably foreseeable and have a reasonably close causal relationship to the proposed project.
  2. Restore the full authority of agencies to work with communities to develop and analyze alternatives that could minimize environmental and public health costs. This proposed change would give agencies greater flexibility to determine the “purpose and need” of a proposed project.  The 2020 NEPA rule limited federal agencies’ ability to develop and consider alternative designs or approaches that do not fully align with the stated goals of the project’s sponsor, which often is a private company.
  3. Establish CEQ’s NEPA regulations as a floor, rather than a ceiling, for the environmental review standards that federal agencies should be meeting.  This would restore the ability of federal agencies to tailor their NEPA procedures, consistent with the CEQ NEPA regulations, to help meet the specific needs of their agencies, the public, and stakeholders.  The 2020 NEPA rule sought to reduce the timeline for and instances in which agencies must conduct NEPA reviews, as the average time for agencies to complete an EIS is 4.5 years.

CEQ also announced that it will be working over the coming months to propose broader “Phase 2” changes to the NEPA regulations to help ensure full and fair public involvement in the environmental review process; meet the nation’s environmental, climate change, and environmental justice challenges; provide regulatory certainty to stakeholders; and promote better decision-making consistent with NEPA’s goals and requirements.

CEQ is inviting public comment on these proposed revisions.  Two public meetings on the proposed rule will be held online on October 19, 2021 from 1:00-4:00 pm EDT and October 21, 2021 from 5:00-8:00 pm EDT. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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