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The Council on Environmental Quality (CEQ) recently published an
Advance Notice of Proposed Rulemaking ("Notice") seeking
public comment on a vast range of potential revisions to CEQ's
regulations implementing the National Environmental Policy Act
(NEPA). These potential revisions would expand the
Trump Administration's efforts to implement Executive Order
13807 – which aims to streamline the federal environmental
review and authorization process for infrastructure projects
– by overhauling virtually the entire NEPA regulatory regime
for all applicable projects. Any entity engaged in a business with
an environmental nexus that requires federal permits –
including renewable or conventional energy, recreation,
transportation, mining, water infrastructure, real estate,
construction and many others – should have a strong interest
in the outcome of regulations governing NEPA review.
In the Notice, CEQ requests comment on multiple specific aspects
of NEPA's process and scope, as well as more general areas for
improvement. For example, CEQ seeks comment regarding:
the format, page length, and time
limits for the completion of NEPA documents;
potential revisions to key
definitions such as "Major Federal Action,"
"Effects" and "Cumulative Impact," as well as
the potential addition of new definitions;
regulations relating to fundamental
NEPA documents such as Notices of Intent, Environmental Assessments
and Environmental Impact Statements;
the appropriate range of alternatives
to be analyzed;
modification, rescission or
replacement of any obsolete provisions in the regulations;
potential revisions to the
mitigation-related regulations; and
the role of tribal governments in the
NEPA process.
In the 48 years since it was enacted, NEPA has been the subject
of hundreds of judicial interpretations and dozens of CEQ guidances
and individual agency implementing regulations, but the substantive
updates that CEQ is now considering would be the first in more than
30 years. The Notice demonstrates that CEQ is simultaneously
considering broad revisions as well as fine-tuning of specific
aspects of the law. A comprehensive regulatory overhaul presents a
rare and valuable opportunity for businesses, trade groups, states,
tribes, NGOs and others to comment on potentially significant
changes to the regulations that govern NEPA's procedural
requirements. Clients should consider offering their input to
assist CEQ's effort to update and clarify these regulations.
Ideally, NEPA's best practices can be codified and standardized
across the federal government through this process. Comments must
be submitted on or before July 20.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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