Snell & Wilmer

On January 9, 2020, in one of the more significant environmental proposals of the current administration, President Trump’s Council on Environmental Quality (CEQ) proposed updates to its regulations for implementing the procedural provisions of the National Environmental Policy Act (NEPA). According to the White House, the rules are designed to modernize and accelerate environmental reviews required by NEPA in order that infrastructure may be constructed in a more timely, efficient, and affordable manner.

US Department of Interior Secretary, David L. Bernhardt in response to the proposed rule changes noted, “[t]he purpose of NEPA is noble; its application, however, has gone off the rails. The action by the [CEQ] is the first step in bringing common sense to a process that has needlessly paralyzed decision-making. We can ensure that our views are well-informed and that the public is heard without tying ourselves in knots. CEQ is to be commended for seeking public comment on this initiative.”

Signed into law by President Nixon in 1970, NEPA requires federal agencies to assess the environmental impacts of proposed major federal actions as part of their decision-making. In seeking to change the rules, the CEQ observed that NEPA has become increasingly complex and time-consuming not only for the involved federal agencies but also project applicants seeking permits or approvals from the federal government. The CEQ determined that the average length of a NEPA-required environmental impact statement is over 600 pages and that the average time for federal agencies to complete NEPA-related reviews is 4.5 years.

The proposed rule would modernize and clarify the existing CEQ regulations in order to facilitate more efficient NEPA reviews by simplifying regulatory requirements and by incorporating key elements of the One Federal Decision policy established in 2017 by President Trump’s Executive Order 13807.

Among other things, the proposed rule seeks to accomplish the following:

  • Modernize, simplify and accelerate the NEPA process, including establishing presumptive limits of two years for completion of environmental impact statements and one year for completion of environmental assessments.
  • Clarify terms, application and scope of NEPA review, including providing clear direction regarding whether NEPA applies to a particular action in the first place and requiring earlier public input to facilitate informed decision-making by the involved federal agencies.
  • Reduce unnecessary burdens and delays, including the facilitation of more efficient reviews of categorical exclusions and environmental assessments.

This proposal is consistent with the current administration’s oft-voiced frustrations at the slow pace of federal approvals required by the existing NEPA regulatory regime and the desire to reduce related regulatory delays to important infrastructure related projects. The proposal is likely to go nowhere in the event of an administration change in November. If, however, this administration sees another term, some change to the current NEPA processes may be expected.

Not surprisingly, the proposal was welcomed by industries including ranching, construction, and energy and met with concern from environmental groups warning that the proposal would ignore the climate ramifications of highways, pipelines and other projects, and as such, the promise of legal challenges.

Public comment is due on or before March 10, 2020.

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