United States: NEPA Regulatory Updates: Council On Environmental Quality Seeks Comment As It Considers Revisions To NEPA Regulations

Last Updated: June 22 2018
Article by Rachel Jacobson, Michael J. Hazel and Benjamin Hanna

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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