The National Environmental Policy Act (NEPA) of 1969 requires federal agencies to assess the environmental effects of their proposed actions, and incorporate this information into their decisions. Agencies have each adopted their own review regulations, which focus on the search for “significant impacts,” and on alternatives and mitigation measures that will allow an agency to accomplish its goals. This all sounds good, but what does it all mean? For example, which impacts might be “significant?” How many alternatives should be considered, with what attendant costs and benefits?
Government-wide guidance is provided by the White House’s Council on Environmental Quality (CEQ), established by NEPA and appointed by the President. CEQ issues formal regulations that agencies must follow, and formal guidance documents that provide additional advice. CEQ also reviews agencies’ NEPA implementation programs, and publishes annual national Environmental Quality Reports. CEQ is now reviewing how it meets its NEPA responsibilities, in order to meet mandates from President Trump.
What Did President Trump Order?
On August 15, 2017, President Trump issued Executive Order (EO) 13807, ‘‘Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects.’’ This EO directs agencies to develop procedures to assign “major infrastructure projects” with a federal lead agency to navigate all federal environmental review and decision-making processes, leading to “one federal decision” on an accelerated timetable. The EO assigns CEQ to develop guidance for these changes. CEQ published an initial list of procedural initiatives one month later, on September 14, 2017, and has now issued an “advance notice of proposed rulemaking (ANPRM)” seeking comments on a series of questions about whether and how to “update and clarify CEQ NEPA regulations.” Although this review responds to the President’s priorities for major infrastructure projects, CEQ’s questions go beyond this narrow subset of federal activities and ask questions about all federal processes and decision making under NEPA.
What Questions is CEQ Asking About How to Change NEPA Actions?
CEQ is asking 20 questions about NEPA implementation, and its oversight role. All are very broad and open-ended, which invites a huge range of possible responses. They are divided into several categories, which I quote below just as published:
- NEPA Process
1. Should CEQ's NEPA regulations be revised to ensure that environmental reviews and authorization decisions involving multiple agencies are conducted in a manner that is concurrent, synchronized, timely, and efficient, and if so, how?
2. Should CEQ's NEPA regulations be revised to make the NEPA process more efficient by better facilitating agency use of environmental studies, analysis, and decisions conducted in earlier Federal, State, tribal or local environmental reviews or authorization decisions, and if so, how?
3. Should CEQ's NEPA regulations be revised to ensure optimal interagency coordination of environmental reviews and authorization decisions, and if so, how?
- Scope of NEPA Review
4. Should the provisions in CEQ's NEPA regulations that relate to the format and page length of NEPA documents and time limits for completion be revised, and if so, how?
5. Should CEQ's NEPA regulations be revised to provide greater clarity to ensure NEPA documents better focus on significant issues that are relevant and useful to decisionmakers and the public, and if so, how?
6. Should the provisions in CEQ's NEPA regulations relating to public involvement be revised to be more inclusive and efficient, and if so, how?
7. Should definitions of any key NEPA terms in CEQ's NEPA regulations, such as those listed below, be revised, and if so, how?
| a. | Major Federal Action |
| b. | Effects |
| c. | Cumulative Impact |
| d. | Significantly |
| e. | Scope |
| f. | Other NEPA terms |
8. Should any new definitions of key NEPA terms, such as those noted below, be added, and if so, which terms?
| a. | Alternatives |
| b. | Purpose and Need |
| c. | Reasonably Foreseeable |
| d. | Trivial Violation |
| e. | Other NEPA terms |
9. Should the provisions in CEQ's NEPA regulations relating to any of the types of documents listed below be revised, and if so, how?
| a. | Notice of Intent |
| b. | Categorical Exclusions Documentation |
| c. | Environmental Assessments |
| d. | Findings of No Significant Impact |
| e. | Environmental Impact Statements |
| f. | Records of Decision |
| g. | Supplements. |
10. Should the provisions in CEQ's NEPA regulations relating to the timing of agency action be revised, and if so, how?
11. Should the provisions in CEQ's NEPA regulations relating to agency responsibility and the preparation of NEPA documents by contractors and project applicants be revised, and if so, how?
12. Should the provisions in CEQ's NEPA regulations relating to programmatic NEPA documents and tiering be revised, and if so, how?
13. Should the provisions in CEQ's NEPA regulations relating to the appropriate range of alternatives in NEPA reviews and which alternatives may be eliminated from detailed analysis be revised, and if so, how?
- General
14. Are any provisions of the CEQ's NEPA regulations currently obsolete? If so, please provide specific recommendations on whether they should be modified, rescinded, or replaced.
15. Which provisions of the CEQ's NEPA regulations can be updated to reflect new technologies that can be used to make the process more efficient?
16. Are there additional ways CEQ's NEPA regulations should be revised to promote coordination of environmental review and authorization decisions, such as combining NEPA analysis and other decision documents, and if so, how?
17. Are there additional ways CEQ's NEPA regulations should be revised to improve the efficiency and effectiveness of the implementation of NEPA, and if so, how?
18. Are there ways in which the role of tribal governments in the NEPA process should be clarified in CEQ's NEPA regulations, and if so, how?
19. Are there additional ways CEQ's NEPA regulations should be revised to ensure that agencies apply NEPA in a manner that reduces unnecessary burdens and delays as much as possible, and if so, how?
20. Are there additional ways CEQ's NEPA regulations related to mitigation should be revised, and if so, how?
What’s Next?
The deadline to submit formal comments on this ANPRM is July 20, 2018. It’s safe to assume there will be many comments. Remembering that the stated purpose of this rulemaking is CEQ’s response to the President’s desire to speed reviews of major infrastructure projects, it seems safe to expect procedural accelerations. Because the questions go far beyond infrastructure projects and address all NEPA actions – i.e., all federal processes and decisions that may have significant impacts on the environment – it seems likely that CEQ will take the opportunity to revamp NEPA procedures in broader ways. NEPA processes have certainly earned criticisms when efforts to thoroughly explore alternatives have led to lengthy delays, and successive comments from agencies and the public have further delayed formal reviews and decisions. The over-arching question is whether expeditious-ness gives way to expediency that will reduce agencies’ abilities to adhere to NEPA’s statutory goals.
Self Assessment Checklist
Is the organization subject to specific federal agency policies, programs, rulemakings, or permit processes subject to NEPA review before relevant decisions can be made?
If so, has or does the agency conduct environmental reviews subject to NEPA (e.g., under the agency’s own NEPA regulations and/or in compliance with CEQ regulations and guidance)?
If so, are there ways to improve those reviews by adjusting NEPA regulations and guidance?
If so, is the organization participating in CEQ’s regulatory process by offering comments, or by reviewing comments submitted by others?
Where Do I Go for more Information?
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CEQ-sponsored NEPA.gov website (with NEPA statutory text, regulations, guidelines and reports)
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CEQ proposal (6/20/18 Federal Register)
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Site to submit comments
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EO 13807 (8/15/17; in 8/24/17 Federal Register)
- CEQ initial list of implementing measures (9/14/17 Federal Register)
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About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 13 existing products, including Environmental Compliance: A Simplified National Guide and The Complete Guide to Environmental Law.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com