On October 7, the Council on Environmental Quality (CEQ) issued a Notice of Proposed Rulemaking (NOPR) to revise its regulations implementing the National Environmental Policy Act (NEPA), which requires federal agencies to take a “hard look” at the environmental impacts of certain proposed projects, but does not mandate any particular outcome. The NOPR is focused on revisions the July 2020 rulemaking completed by the Trump administration, which was the first significant overhaul of the NEPA regulations since their initial promulgation in 1978. The Trump rulemaking included provisions to streamline the NEPA review process, as well as substantive changes to the scope of the review. CEQ’s NOPR follows an announcement early in 2021 by the incoming Biden administration that it planned to review the July 2020 rulemaking. In the NOPR, the Biden administration outlines the aspects of the rule it plans to change: the purpose and need of a proposed agency action, agency procedures for implementing CEQ’s regulations, and the definition of “effects” of a proposed action.
Notably, CEQ’s October 7 NOPR provides that “the 2020 NEPA Regulations may have the effect of limiting the scope of NEPA analysis, with negative repercussions for environmental protection and environmental quality, including in critical areas such as climate change and environmental justice.” To address these concerns, CEQ states that it plans to engage in a series of rulemakings to revise the 2020 regulations. The October 7 NOPR initiates “Phase 1” of these revisions.
One of the most significant proposed changes relates to how impacts of a project are assessed. CEQ’s 2020 regulations omitted the definitions of direct, indirect, and cumulative impacts, and eliminated the requirement that an agency consider the cumulative impacts of a proposed action. The October 7 NOPR proposes to restore the 1978 regulations’ definitions of direct, indirect, and cumulative impacts and to remove language added in 2020 defining “effects” as those “that are reasonably foreseeable and have a reasonably close causal relationship” to the proposed action. The NOPR would also remove language added in 2020 that provides a “but for” causal relationship is insufficient to make an agency responsible for a particular effect; excludes the requirement to consider effects that are remote in time, geography, or the product of a lengthy causal chain; excludes the requirement to consider effects that the agency has no ability to prevent due to its limited authority or that would occur regardless of the proposed action. These changes are likely intended to ensure that climate change impacts are assessed as part of the NEPA review process.
CEQ requests comments on the NOPR within 45 days of its publication in the Federal Register, or by November 22. CEQ plans to host two virtual public meetings to discuss the proposed rule on October 19 and October 21. Additional information on these meetings and other aspects of the proposed rule is available at www.nepa.gov.