The Council On Environmental Quality Updates NEPA Regulations

• Published date: 24 July 2020
• Law Firm: Holland & Knight
• Author: Mr Rafe Petersen, Kevin J. Ashe and Aaron S. Heishman

Final Rule Aims to Expedite the Environmental Review of Projects Requiring Federal Permits or Funding

Highlights

• The Council on Environmental Quality (CEQ) published a final rule in the Federal Register on July 16, 2020, updating its regulations for implementing the National Environmental Policy Act (NEPA).
• The revised regulations - the first significant update in more than 40 years - are intended to streamline environmental review of federally approved or funded projects, and to effectuate previous Executive Orders of the Trump Administration that sought the same.
• The amended regulations may prove to be successful in producing quicker, more concise Environmental Impact Statements (EIS) - but environmental documents produced under the new regime will need to withstand scrutiny and potential legal challenges from project opponents.

The Council on Environmental Quality (CEQ) published a final rule in the Federal Register on July 16, 2020, updating its regulations for implementing the National Environmental Policy Act (NEPA). The amended regulations - the first significant update in more than 40 years - are intended to streamline environmental review of federally approved or funded projects, and to effectuate previous Executive Orders (EO) of the Trump Administration that sought the same.

Proponents of projects subject to federal funding or approvals should be aware of the sweeping revisions to the NEPA regulations, as they may result in greater expediency for project approvals, as well as increased scrutiny from opponents. While CEQ's updated regulations may be welcomed by project proponents, the regulations are likely to be subject to legal challenges as soon as they are applied to a particular project.

Background

Often called the linchpin of U.S. environmental laws, NEPA directs federal agencies to review proposed actions and to consider potential impacts that the action will have on the social, economic and physical environment. Generally, NEPA applies to projects requiring a federal approval or permit, receiving federal funding, or impacting federally owned public land. NEPA is a "process-forcing" statute designed to ensure that environmental considerations are factored into the decision-making process of federal agencies.

The substantive requirements of the NEPA process are largely found in CEQ's regulations (augmented by certain federal agencies' regulations and policies). Although CEQ has issued a number of guidance documents over the decades, the agency has only substantively amended its NEPA regulations once (in 1986) since their initial adoption. Meanwhile, an extensive body of case law has developed around the interpretation and application of NEPA and CEQ's implementing regulations which also guides federal agencies.

Prior to CEQ's issuance of revised NEPA regulations, the Trump Administration has consistently endeavored to expedite the permitting and environmental review processes for major infrastructure projects (e.g., transit, energy, water and telecom). For example, EO 13807 of August 2017 directed federal agencies to coordinate and expedite their environmental reviews of major infrastructure projects.

Updated Regulations

To streamline environmental reviews and procedures under NEPA, the updated regulations accomplish the following:

• Shorter and Faster Environmental Reviews: Section 102 of NEPANEPAuires federal agencies to prepare for every "major Federal action significantly affecting the quality of the human environment" a...