The latest and greatest NEPA requirements

For any NEPA nerds out there, the last few years have seen an unprecedented tug-of-war over the law’s requirements.  In 2020, the Trump Administration put its stamp on the CEQ regulations implementing NEPA, the first substantial editing of its procedural requirements since 1978.  Upon taking office, the Biden Administration began to undo many of the changes.  On October 7, 2021, CEQ finalized the first phase of its changes to the 2020 Regulations, in which the agency made a handful of targeted revisions.  On June 3, 2023, President Biden signed into law the Fiscal Responsibility Act of 2023 (FRA), which made a number of changes in the law itself, summarized here as follows:

• Codify that environmental impact statements should include discussion of reasonably foreseeable effects of a proposed action, reasonably foreseeable effects that cannot be avoided, and a reasonable range of alternatives to the proposed action. (Sec. 102(2)(C); 42 U.S.C. § 4332(2)(C)).
• Clarify requirements for determining whether to prepare an environmental document and the appropriate level of NEPA review. (Sec. 106; 42 U.S.C. § 4336).
• Clarify the roles and responsibilities of lead agencies and cooperating agencies, including designation of such agencies. (Sec. 107(a); 42 U.S.C. § 4336a(a)).
• Promote development of a single environmental document. (Sec. 107(b); 42 U.S.C. § 4336a(b)).
• Set page limits and deadlines for environmental impact statements and environmental assessments. (Sec. 107(e) and (g); 42 U.S.C. § 4336a(e) and (g)).
• Direct agencies to develop procedures for how, under Federal agency supervision, project sponsors may prepare environmental assessments and environmental impact statements. (Sec. 107(f); 42 U.S.C. § 4336a(f)).
• Provide time lengths and circumstances for when agencies can rely on programmatic environmental documents without additional review. (Sec. 108; 42 U.S.C. § 4336b).
• Establish a process for Federal agencies to use another agency’s categorical exclusions. (Sec. 109; 42 U.S.C. § 4336c).
• Require CEQ to conduct a study of online and digital technologies to help provide for efficient reviews and improve public accessibility and transparency. (Sec. 110; 42 U.S.C. § 4336d).
• Define terms used in NEPA, including cooperating agency, environmental document, lead agency, major Federal action, participating Federal agency, programmatic environmental document, and special expertise. (Sec. 111; 42 U.S.C. § 4336e).

On July 31, 2023, CEQ published proposed Phase 2 Revisions to the agency’s NEPA implementing regulations.   On May 1, 2024, the Council on Environmental Quality (CEQ) published its final Bipartisan Permitting Reform Implementation Rule (Final Rule).  These will be the NEPA requirements for the foreseeable future (that would be until January, 2025 anyway).  The Federal Register Notice with the final regulations may be found here.

Nossaman is providing a series of reviews of various aspects of the changes that have been made.  They provided this initial overview of what they think is noteworthy (their perspective seems usually be that of a private party):

• Changes in the definition of “major federal action”;
• Changes to the way federal agencies approach NEPA’s threshold question of whether the effects of a major federal action are “significant”;
• Codifying environmental justice and climate change as among the effects that must be examined during the NEPA process;
• Updated requirements relating to public engagement;
• Codification of CEQ’s 2023 greenhouse gas guidance;
• Additional flexibility for federal agencies to establish new categorical exclusions;
• Codification of CEQ’s longstanding practice of relying on mitigated findings of no significant impact (FONSI);
• Providing clarity on the requirements for mitigation to form the basis of a mitigated FONSI;
• Removal of language added by the 2020 Regulations that sought to limit the ability of third parties to challenge NEPA determinations; and
• Adoption of provisions intended to speed the NEPA review process.

The second installment, discussing the first two bullets, is found here (others will follow).  One of the topics it addresses is the criteria for “significance” that would require an EIS.  The new regulation mostly affirms past practices, but it explicitly recognizes a situation that may arise for “restoration” proposals on public lands.  In determining significance:

Agencies may also consider the extent to which an effect is adverse at some points in time and beneficial in others (for example, in assessing the significance of a habitat restoration action’s effect on a species, an agency may consider both any short-term harm to the species during implementation of the action and any benefit to the same species once the action is complete).  However, agencies shall not offset an action’s adverse effects with other beneficial effects to determine significance …

The Preamble warns:

In some circumstances, an effect may be significant due to the harm during one period of time regardless of the benefit at another.  For example, if implementation of a habitat restoration action may extirpate a species from the area, then an agency could not reasonably rely on long-term habitat improvements resulting from the action to determine that the overall effect to the species is not significant.

(I would like to say this is just an extreme example to make the point that if short term effects may be significant, you can’t discount them based on long-term benefits to avoid preparing an EIS.  However, they follow this with a comparison to mitigation, where it IS possible to offset adverse effects with beneficial mitigation to the point that they are no longer significant.)