Sea Change? Proposed Updates To NEPA Regulations Seek To Streamline Review Process, But Also Spur Controversy

On January 10, 2020, the Trump Administration announced a proposed rulemaking that will be the first comprehensive overhaul to the White House Council on Environmental Quality's (“CEQ”) National Environmental Policy Act (“NEPA”) implementing regulations1 in over forty years.2 Proponents of the proposed changes laud the expected streamlining of the environmental review process and the reduction of time and costs expended by federal agencies in advancing projects and permits. Opponents of the proposal, on the other hand, contend that it will weaken environmental protections. The most contentious proposed change is the elimination of the requirement for agencies to evaluate cumulative impacts.3 This change is seen by environmental groups as a way for federal agencies to avoid considering the impact of government actions on greenhouse gas (“GHG”) emissions and climate change.

The proposal would address many needed changes that could over time make the NEPA process more efficient and reduce litigation over long-settled issues. The proposed changes can be divided into three groups: substantive changes, practical changes and legal clarifications. While the primary substantive change — eliminating the requirement to evaluate cumulative impacts — likely will be delayed by litigation, the less controversial practical changes and legal clarifications could be finalized and in force in mid- to late 2020.

“Effects” — Eliminating the Requirement to Disclose Cumulative Impacts

The NEPA statute requires federal agencies to evaluate the “adverse environmental effects”4 of proposed actions, but the implementing regulations have long divided effects into three categories — direct, indirect and cumulative. The proposal eliminates those definitions and strikes all references to direct, indirect and cumulative, in favor of “effects or impacts.” The new definition captures the current concepts of direct and indirect effects, but eliminates the concept of cumulative impacts — the incremental impacts of the proposed project when considered along with past, present and reasonably foreseeable future projects.5

It is unclear, however, whether the proposed changes would ultimately allow agencies to avoid considering climate change in their NEPA reviews as many commenters have opined. In recent years, some courts have struck down agency actions for failing to adequately consider climate change. Any such decisions that overturned agency action based on the cumulative impacts analysis could carry less weight in future litigation applying the new regulations that exclude cumulative impacts.6 However, the proposed changes likely will not render obsolete the full body of NEPA caselaw concerning climate change impacts, because not all of those cases turned on the cumulative impacts analysis.

Several courts have required federal agencies to bolster their analysis of GHGs and climate change based on NEPA's requirement that agencies take a “hard look” at the direct and indirect effects of proposed projects.7 The holdings from those cases could remain relevant to an agency's obligation to evaluate “adverse environmental effects,” which encompasses the current concepts of direct and indirect effects. Indeed, the proposed changes acknowledge that some level of analysis of climate change impacts will typically be required in NEPA reviews, which indicates that existing caselaw on such analyses could remain relevant.8

Although the proposed change to eliminate cumulative impacts is a significant textual change from the current regulations, the ultimate impact on agencies' analysis of GHG emissions and climate change impacts remains uncertain. We expect this proposed change to be heavily litigated, and it likely will take years to assess whether, when and how an agency must consider climate change impacts in NEPA documents going forward.

Improving the Process — Proposed Changes to Agency Coordination Procedures, Timelines for Completion, and Presumptive Page Limits

Project proponents have long complained that the NEPA review process is far too lengthy and costly. The proposal includes a number of changes aimed at streamlining the...