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.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Andrea Wortzel Andrea Wortzel

Andrea focuses her practice on water quantity and water quality issues, including water rights, water supply planning, and water withdrawal permitting, as well as discharge permitting and TMDL development and implementation. She coordinates a growing and influential stakeholder group focused on water supply…

Andrea focuses her practice on water quantity and water quality issues, including water rights, water supply planning, and water withdrawal permitting, as well as discharge permitting and TMDL development and implementation. She coordinates a growing and influential stakeholder group focused on water supply issues in the Commonwealth of Virginia. Beyond her water practice, Andrea advises clients on endangered species issues, landfill permitting and compliance, waste permitting, environmental compliance and audit programs and environmental enforcement defense. Andrea also regularly counsels clients on legislative and regulatory strategies to promote her clients’ objectives.

Photo of Morgan Gerard Morgan Gerard

Morgan’s practice focuses on advising public and private sector clients on environmental and energy regulatory compliance, including permitting, rulemaking, and enforcement actions. She has focused on following the emerging energy trends and the associated environmental issues that arise in strengthening grid resilience and…

Morgan’s practice focuses on advising public and private sector clients on environmental and energy regulatory compliance, including permitting, rulemaking, and enforcement actions. She has focused on following the emerging energy trends and the associated environmental issues that arise in strengthening grid resilience and modernizing the energy system. Morgan has counseled clients ranging from those engaging in the hydropower licensing and relicensing process to electric utilities, wholesale generators, and distributed energy manufacturers, including electric vehicle manufacturers, solar installers and energy storage providers. She also counsels clients on matters arising under the National Environmental Policy Act, the Federal Power Act, the Clean Air Act, the Clean Water Act, the Coastal Zone Management Act, the Endangered Species Act, and similar state and local regulatory schemes.

Photo of Viktoriia De Las Casas Viktoriia De Las Casas

Viktoriia is an environmental and natural resources attorney with experience in regulatory compliance, permitting, due diligence, enforcement, and litigation matters. She focuses her practice on advising clients on all aspects of compliance with the Endangered Species Act (ESA), the Bald and Golden Eagle…

Viktoriia is an environmental and natural resources attorney with experience in regulatory compliance, permitting, due diligence, enforcement, and litigation matters. She focuses her practice on advising clients on all aspects of compliance with the Endangered Species Act (ESA), the Bald and Golden Eagle Protection Act (BGEPA), and the Migratory Bird Treaty Act (MBTA). Viktoriia works with real estate developers, wind, solar, and transmission line operators, and other businesses on wildlife issues that come up during federal and state permitting. In addition, Viktoriia is a member of the firm’s State Energy Regulation practice where she represents clients before the Virginia State Corporation Commission and Maryland Public Service Commission. Over the years Viktoriia has also developed proficiency in advising clients how to address environmental justice requirements that arise in permitting, litigation, and other contexts. She has also been assisting clients in developing company-wide strategies for compliance with various reporting obligations, for example, EPA’s TSCA PFAS reporting rule.