CEQ's Proposed Update to NEPA

March 11, 2020

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Introduction

The Council on Environmental Quality (CEQ) is proposing an update to its regulations for implementing the procedural provisions of the National Environmental Policy Act (NEPA) of 1969. The purposes of NEPA include establishing a national policy toward the environment and promoting “efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man.”NEPA requires federal agencies to incorporate the potential environmental effects of their actions, projects, and programs into their decision-making process.

CEQ published an advance notice of proposed rulemaking (ANPRM) on June 20, 2018, which “request[ed] comments on potential revisions to update and clarify CEQ NEPA regulations” as the Council considered substantively revising the regulations with subsequent rulemaking. The ANPRM included 20 questions, divided into 3 categories (NEPA Process; Scope of NEPA Review; and General), that largely focused on how to make NEPA more efficient, timely, and effective. CEQ published a notice of proposed rulemaking (NPRM) on January 10, 2020, which would “comprehensively update and substantially revise” the CEQ NEPA regulations that were initially finalized in 1978. CEQ’s proposed rule represents the first substantive revision of its NEPA regulations since 1986, when the requirements for “worst case analysis” were rescinded and replaced with provisions for disclosing incomplete or unavailable information when evaluating impacts for an environmental impact statement.

NEPA requires that an agency (or multiple agencies), when taking a major federal action, must consider whether the proposed action significantly affects “the quality of the human environment.” According to CEQ’s existing regulations, such actions tend to consist of the adoption or approval of official policies (including rules and regulations), formal plans, programs, and specific projects. To consider the environmental effects of an action, agencies conduct an environmental review, which may involve three levels of analysis: categorical exclusion (CE); environmental assessment (EA); and environmental impact statement (EIS).

The courts have interpreted various aspects of NEPA, including clarifying the Act’s objectives and determining compliance with procedural requirements. For instance, the U.S. Supreme Court identified NEPA’s “twin aims” of “plac[ing] upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action” and “ensur[ing] that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process.” While NEPA and its implementing regulations prescribe particular procedural actions, agencies are still given significant leeway on substantive issues and decisions.

Although the fundamental understanding of NEPA would remain the same under the revised implementing regulations, CEQ’s proposed rule implies both substantive and procedural changes that affect the extent to which environmental review informs agency decision-making processes. This public interest comment offers comments on CEQ’s NPRM by focusing on aligning NEPA with regulatory best practices, encouraging systematic regulatory analysis of the proposed rule, and addressing specific topics where CEQ invites comment.

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