NEPA's Next Phase: Stay Tuned

A lot has been written recently about the recent final rule issued by the Council on Environmental Quality (CEQ) to amend certain provisions of its regulations for implementing the National Environmental Policy Act (NEPA). The amendments generally restore provisions that were in effect for decades before being modified in 2020 and largely track the proposed rule published on Oct. 7, 2021. The rule becomes effective on May 20, 2022.

Specifically, the rule amends several provisions of the NEPA regulations, 40 CFR parts 1500 through 1508, in three areas as follows:

• 40 CFR 1502.13: revises the requirement for a purpose and need statement in an environmental impact statement clarifying the discretion of the applicable agency to consider a variety of factors and removing the 2020 limitation in considering alternatives
• 40 CFR 1507.3: removes language that could be construed to limit agencies' implementation of NEPA rules specific to their programs that may go beyond the CEQ regulatory requirements
• 40 CFR 1508.1(g): revises the definition of "effects" to include the historic categories of direct, indirect and cumulative effects

As noted, these three areas were previously revised by rule change issued on July 16, 2020. (See Holland & Knight's previous alert, "The Council on Environmental Quality Updates NEPA Regulations," July 23, 2020, for background on the 2020 amendments.)

According to the docket, CEQ received more than 39,400 comments on the proposed rule. Given that level of interest, the real story can be found in CEQ's 189-page Response to Comments. As described in CEQ's Oct. 6, 2021, press release when the proposal was released, CEQ intends to issue broader "Phase 2" changes to the NEPA regulations regarding expanded public involvement and address climate change and environmental justice challenges, among other things. Some of these topics are addressed in the voluminous response to comments.

Specifically, CEQ addresses its plan for Phase 2 regulations defending its bifurcated process and explaining that it is reevaluating other aspects of the 2020 rule beyond the three areas addressed in this final rule. In supporting several commenters, CEQ confirms its view that climate change impacts are properly considered in evaluating direct, indirect and cumulative effects (referencing climate change more than 75 times in its response). CEQ also indicated that it would further address environmental justice and public participation in its Phase 2 regulations, a process that is likely to garner even more public comment.

One of the more interesting issues that the Biden Administration will have to wrestle with in moving forward with Phase 2 is the fact that there is strong support for certain aspects of the 2020 reforms that sought to streamline the NEPA process (which actually began during the previous administration). Use of plain language, firmer deadlines, page limits and coordination among the agencies are all NEPA reforms that have a lot of support. Keeping these provisions intact could lessen the chances of opposition to further reversion.

Stay tuned.