NEPA-calypse Now?

22 January 2020 Legal News: Environmental Publication
Authors: Peter A. Tomasi David M. Bates

What the Council on Environmental Quality’s Proposed Rulemaking Means for Future Infrastructure Projects

On New Year’s Day in 1970, Richard Nixon signed the National Environmental Policy Act of 1969 (“NEPA”), creating the Council on Environmental Quality (“CEQ”) and proclaiming “that the 1970s must be the years when America pays its debt to the past by reclaiming the purity of its air, its waters, and our living environment.” Like mood rings and lava lamps, after a half-century the luster of NEPA has dimmed.  The statute appears an antiquated relic from the decades before the adoption of the Endangered Species Act, Clean Air Act, Clean Water Act, RCRA, and CERCLA, a suite of laws that ushered in the modern regulatory regime and that in the process made many NEPA reviews superfluous.  In an effort to clear the regulatory cobwebs, on January 9, 2020, the CEQ proposed regulations that would somewhat streamline the scope of review required by NEPA.

Marking the first comprehensive update to the CEQ’s regulations since their promulgation in 1978, the rule seeks to narrow—but not eliminate—review under the statute. Proposed changes include:

  • Excluding from review non-federal projects with minimal federal funding or federal involvement, where the reviewing agency does not control the outcome of the project;

  • Revising the scope of effects reviewed from the current list of “direct, indirect, and cumulative” effects to “reasonably foreseeable” effects “with a reasonably close causal relationship”—in other words, eliminating the consideration of “cumulative” impacts;

  • Establishing time limits for the completion of Environmental Assessments (“EAs”) and Environmental Impact Statements (“EISs”) (one and two years, respectively); and

  • Creating page limits for EAs and EISs of 75 and 300 pages respectively, unless a senior agency official of the lead agency approves in writing a longer review.

The rulemaking was published in the Federal Register on January 10, 2020, triggering a 60-day public comment period ending March 10.  85 Fed. Reg. 1684 (Jan. 10, 2020).  Public hearings will be held on the proposed rules in Denver on February 11, and Washington, D.C., on February 25.  After received comments are reviewed and addressed, CEQ will finalize the proposal, likely in the fall.

The ultimate fate of the proposed change is far from certain. While CEQ Chair Mary B. Neumayr stated in an op-ed that the proposed changes “would . . . reduce unnecessary burdens and delays and would make important clarifications to improve the decision-making process,” critics have characterized the proposal as “nothing more than an attempt to write Donald Trump’s climate denial into official government policy” and have all but promised to bring suit to stop the rulemaking from taking effect.  However, even if the rule is challenged in the federal courts, so long as it is in effect it may influence decisions in states like Wisconsin that use the CEQ guidelines to implement state-equivalents of NEPA.

For updates on the statue of the proposed revisions to the CEQ guidelines, contact Pete Tomasi at ptomasi@foley.com or 414-297-5621, or David Bates at dbates@foley.com or (713) 276-5355.

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