As Jon pointed out in his Litigation Update, the combo of various court cases plus administrative actions has led to the CEQ NEPA regs being pulled. So here’s the guidance.
While these revisions are ongoing, agencies should continue to follow their existing practices and procedures for implementing NEPA consistent with the text of NEPA, E.O. 14154, and this guidance. Agencies should not delay pending or ongoing NEPA analyses while undertaking these revisions. For such analyses, until revisions are completed via the appropriate rulemaking process, agencies should apply their current NEPA implementing procedures with any adjustments needed to be consistent with the NEPA statute as revised by the FRA. Moreover, although CEQ is rescinding its NEPA implementing regulations at 40 C.F.R. parts 1500–1508, agencies should consider voluntarily relying on those regulations in completing ongoing NEPA reviews or defending against challenges to reviews completed while those regulations were in effect. CEQ will provide ongoing guidance and assistance through monthly meetings of the Federal Agency NEPA Contacts and the NEPA Implementation Working Group required by section 5(c) of E.O. 14154. CEQ encourages agencies to use the final 2020 rule “Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act” as an initial framework for the development of revisions to their NEPA implementing procedures,4 consistent with this guidance, E.O. 14154, and to the extent permitted by
applicable law.
I hope practitioners get a strong voice in this updating, and that the Federal Agency NEPA Contacts will be listened to.
Of course, the two agencies we mostly follow have their own NEPA regs, so that’s what they will be doing. I don’t usually check BLM regs, but for this post I was checking on them and ran across this interesting Federal Register Notice about their NEPA procedures.
It looks like they got rid of various administrative Cat Xs and added legislative ones. This seems fairly unusual but interesting. The rationale seems kind of vague to me.
With this revision, the Department removes four administrative CXs from the BLM’s NEPA procedures due to consideration of sound land management, legal frameworks, and other factors.
Only 33 comments were received. I don’t think the FS every removed CE’s, usually the courts did that for us ;).
While looking at this, I ran across a very handy link that describes what the Fiscal Responsibility Act says about NEPA. It’s very clear and done in Q and A’s.
Bottom line, NEPA practitioners (internal and contractors and grantees) need to use the existing agency regs and check for adherence to E.O. 14154, and FRA. I wouldn’t doubt that there will be some guidance on “checking for adherence to FRA” that will come down at some point.
If the lawyerly folks here see things differently, let me know.
Does anything we’ve seen so far from this Administration suggest that “practitioners get a strong voice in this updating?” When it says things like agencies “should consider” or “are encouraged to” pay attention to Trump’s stated NEPA policies, I imagine most agencies would treat this more like they would binding regulations than “guidance” from CEQ.
Here’s a chronology of what’s happened to NEPA lately. It’s put together by a law firm that is speaking to project proponents and I think their bottom line is worth paying attention to (because it’s their view of what courts will be paying attention to):
https://www.nossaman.com/newsroom-insights-future-uncertain-for-national-environmental-policy-act-implementation?utm_source=vuture&utm_medium=email&utm_campaign=future%20uncertain%20for%20national%20environmental%20policy%20act%20implementation
“project proponents should consider:
– Statutory NEPA requirements, including updates from the Fiscal Responsibility Act;
– Agency-specific NEPA regulations and handbooks currently in place; and
– Frameworks from well-established NEPA caselaw (e.g., requirement that agencies give “hard look” at environmental consequences)”
I’m just going by all the CEQ meetings I sat in as an agency rep…in which the dialogue went something like this.. agencies to CEQ “can you help us out? This is a problem for us.”
CEQ to agencies “if you’d just write clearer and do quality public involvement, things would be fine. We don’t need to change anything.”
Now I don’t know if just because they have an advisory group, they will listen to them. But there is a chance.
I think that’s what I said…??? And the case law will go with the existing agency regs which are built on the CEQ regs, so for the time being it won’t matter that they don’t exist.
Yes, I think we see the same bottom line. !!