CEQ Guidance Public Comment Period open ’til Jan 27th

In our Winter Solstice celebrations and breaks from work, we might have missed this announcement on Dec. 7 of a 45 day public comment period on the CEQ Draft Guidance on Improving the NEPA Review Process.

Here’s a nice summary from Holland and Hart LLP:

CEQ Issues Draft Guidance on Improving NEPA Review Process

The White House Council on Environmental Quality (CEQ) recently released draft guidance to improve the efficiency and timeliness of environmental reviews under the National Environmental Policy Act (NEPA). The draft guidance is of potential interest to natural resource industries and project developers, among others, that would benefit from a more coordinated, streamlined NEPA process with clear timelines for the NEPA review.

The guidance highlights existing regulatory strategies, such as integrating planning and environmental reviews, coordinating multi-agency or multi-governmental reviews and approvals, and setting schedules. It was released as part of the CEQ’s review of existing regulations under Executive Order 13563 and the President’s August 2011 Memorandum on “Speeding Infrastructure Development through More Efficient and Effective Permitting and Environmental Review.”

CEQ’s guidance first clarifies that many of the CEQ regulations applicable to Environmental Impact Statement (EIS) preparation, the most intensive type of NEPA review, should also be applied to all types of NEPA reviews, including less-intensive Environmental Assessments (EAs). For example, the agencies should conduct a scoping analysis of the full range of actions, alternatives, and impacts for all environmental reviews, including both EAs and EISs. Also, for actions initiated by private or non-federal governmental entities, the guidance encourages the agencies to require the applicant, whenever possible and not already required, to submit an environmental report with its application or request for agency action.

The guidance next provides several principles for agencies to follow in conducting environmental reviews, including that:

NEPA encourages simple, straightforward, and concise reviews and documentation that are proportionate to and effectively convey the relevant considerations in a timely manner to the public and decision-makers while comprehensively addressing the issues presented;
NEPA should be integrated into project planning rather than be an after-the-fact add-on;
NEPA reviews should coordinate and take appropriate advantage of existing documents and studies, including through adoption and incorporation by reference;
Early and well-defined scoping can assist in focusing environmental reviews to appropriate issues that would be meaningful to a decision on the proposed action;
Agencies are encouraged to develop meaningful and expeditious timelines for environmental reviews; and
Agencies should respond to comments in proportion to the scope and scale of the environmental issues raised.

While setting out several basic NEPA principles established in practice over the years, the guidance nevertheless may be helpful in emphasizing the need and avenues for timely and efficient NEPA review process. Projects can experience delay in the NEPA process for a variety of reasons. The CEQ’s draft guidance (and as it may be finalized) cannot reasonably be expected to address all of these instances, but for some, it may be helpful. For example, long linear projects, such as interstate pipelines and transmission lines, that involve multiple federal and state agencies may benefit from the guidance’s emphasis on intergovernmental coordination and concurrent environmental reviews. In addition, for projects where delay is the result of the actual drafting of the NEPA analysis, the guidance may provide additional support, or a policy emphasis from CEQ where needed or helpful, to streamline the NEPA process through incorporation by reference and proportionate responses to public comments. Furthermore, the draft guidance emphasizes the benefits of establishing clear timelines on a project-by-project basis, which may help provide some measure of predictability to the process.

CEQ is providing for a 45-day public comment period on the draft guidance. Natural resource project developers and others requiring federal permits or approvals for their operations that would trigger NEPA reviews may wish to submit comments to CEQ describing their own experiences with the NEPA review process and the need to improve the efficiency and timeliness of the process. Providing specific examples of NEPA streamlining processes that have been successful, as well as examples of where the absence of such approaches have resulted in inefficient or delayed NEPA processes, may be helpful to CEQ in formulating the final guidance. The comment period for the draft guidance expires on January 27, 2012. The draft guidance can be found here and the Council’s press release can be found here.

So we have people from the environmental document writing, and the commenting, appealing, objecting, and litigating sides of the house all represented on this blog. I wonder if there are any areas that we all can agree on to improve efficiency and timeliness? Will this restatement and focused document around relevant CEQ guidance help, or are there other factors at work that need to be addressed? What do you think?

3 Comments

  1. Does anyone really see anything new in the draft guidance that would actually improve the review process? I reviewed it and just don’t see anything NEW here and I don’t see anything that would expedite the review process. It seems that much of what I see in there (e.g. shorter EAs, plain writing) means well, but actually results in a much longer NEPA process… at least in my experience.

    I submitted a comment saying as much. It’s not that I don’t agree with some of the guidance… comprehensive scoping, plain language, shorter EAs, a clear and realistic process plan are all great and important things. I’m just curious if anyone really feels that this new guidance will in anyway expedite environmental review under NEPA.

  2. I think that what CEQ has done is pull together existing guidance related to the topic of improving efficiency. It reasserts what is in guidance and does not attempt to break any new ground. My understanding is that Congress is asking the question whether NEPA can be made more efficient, and this is the response from CEQ.

    It’s easy to say that NEPA should be more efficient and if practitioners would just follow the guidance, then there would be no problem. But practitioners follow regulations informed by case law, which is not addressed. It would be interesting to have conversations with Congressional staffs and see what the concern really is and what might be the appropriate solution(s).

  3. I agree wiht MD; nothing new here. As a NEPA practitioneer for over 30 years, I have heard this kind of happy talk many times before, and most of the time from people that have not done any NEPA analysis for quite some time, if they ever have. I’d also agree with Sharon that this direction is silent on the implication of case law and various internal agency directions to address such hard to quatify things such as climate change and carbon sequestration for some small forest management project. The original dirction to have a succinct NEPA documents narrowly focued in the issues has disappeared from agency direciton and has been supplanted with mandates to address every hot-button issue that has developed over the last 10 or 20 years. If this is really the CEQ’s response to a question from Congress as to whether the NEPA process can be made more efficient (as opposed to are all NEPA practitioners and decisionmakers completely up to snuff), then the answer should be a clear and resounding NO! if the desired end product is something that can withstand a court challenge.

    I am also unlcear of the meaning of this phrase: “For example, the agencies should conduct a scoping analysis of the full range of actions, alternatives, and impacts for all environmental reviews, including both EAs and EISs. Is this saying we should have a full range of alternatives developed and the full environmental effects analyzed before we begin the scoping process? I always thought the purpose of scoping was to get the public’s ideas as to what alternatives should be addressed and what issues need to be analyzed. If this phrase does not mean what I am asuming, then what exactly does it mean?

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