On January 9, 2020, the White House issued a proposal to substantially revise the National Environmental Policy Act (“NEPA”). The proposed changes, the most significant to NEPA in more than four decades, could result in a significantly more streamlined environmental review process for major projects, including energy and infrastructure projects. NEPA requires that Federal agencies assess the environmental impacts of proposed major Federal actions. Citing the need to “modernize and clarify regulations and facilitate more efficient, effective, and timely NEPA review,” the White House noted that the average time for Federal agencies to conduct NEPA reviews is four and a half years, and the average length of an Environmental Impact Statement (“EIS”) is over 600 pages.
The most noteworthy proposed changes include:
• Establishing a timeline of two (2) years for completion of an EIS, and one (1) year for completion of an Environmental Assessment
• Providing direction regarding threshold consideration of whether NEPA even applies to a particular action
• Creating a new category of Federal actions – described as having “minimal Federal funding or involvement” or non-discretionary agency decisions – that would be exempt from NEPA review
• Requiring that a project’s environmental “effects” be “reasonably foreseeable” and have a “reasonably close causal relationship to the proposed action”
• Clarifying that an analysis of “cumulative effects” is not required under NEPA – recently courts have interpreted the requirement to assess cumulative effects to include an analysis of potential greenhouse gas emissions
• Requiring joint schedules, a single EIS, and a single Record of Decision, where appropriate, for EISs involving multiple Federal agencies
• Allowing applicants/contractors to assume a greater role in preparing EISs
The proposed changes, codified in the White House’s Notice of Proposed Rulemaking, will be published in the Federal Register on Friday, January 10, 2020, after which the public has 60 days to submit comments.
