On September 14, 2017, The Council on Environmental Quality (CEQ) published an initial list of actions it will take “to enhance and modernize the Federal environmental review and authorization process” for infrastructure projects (82 FR 43227). The notice was issued pursuant to Executive Order 13807 of August 15, 2017, titled ‘‘Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects’’ (82 FR 40463), which directed CEQ to develop an initial list of actions to enhance the Federal environmental review process within 30 days.
In the notice, CEQ identifies several actions it intends to undertake under the EO, including:
- Develop a framework for the implementation of “One Federal Decision” with the Office of Management and Budget (OMB), and in consultation with the Federal Permitting Improvement Steering Council (FPISC). “One Federal Decision” is a concept that anticipates that National Environmental Policy Act (NEPA) reviews for infrastructure projects will be directed by a single lead agency that will establish and update processing timelines.
- Revise, modify, or supplement existing CEQ guidance regarding:
- Categorical Exclusions under NEPA;
- Preparing Environmental Assessments;
- Preparing Efficient and Timely Environmental Reviews under NEPA;
- Appropriate Use of Mitigation and Monitoring and of Mitigated Findings of No Significant Impact; and
- Environmental Collaboration and Conflict Resolution.
- Review existing CEQ Regulations implementing NEPA in order to identify changes needed.
- Issue additional guidance to simplify and accelerate the NEPA process for infrastructure projects, including a practitioners’ handbook, to address issues such as public involvement; deference to the lead federal agency with regard to key NEPA elements; cumulative impacts analysis; sources of information that may be relied upon; reliance on prior studies, analyses, or decisions; and reliance on state, local, and tribal environmental impacts analyses.
- Convene an interagency working group, consisting of the OMB Director and representatives of federal agencies that are members of the FPISC. The working group will review the NEPA implementing regulations and other environmental policies of the agencies to identify permitting impediments for infrastructure projects. Based on this review, the agencies will develop actions and timelines, including procedures for a regular review and update of categorical exclusions. The working group will also address consultations pursuant to Section 7 of the Endangered Species Act (ESA), compliance with Section 106 of the National Historic Preservation Act (NHPA), and permitting and certifications pursuant to the Clean Water Act (CWA).
The NEPA process is often unwieldy, so any efforts to help agencies streamline the process and ensure better inter-agency coordination are welcome. Some agencies have already started making changes to implement EO 13807. For example, the Department of Interior (DOI), issued a secretarial order last month that limits the time and length of DOI-issued EISs. [add hyperlink to order] However, it will likely take some time for CEQ and other involved federal agencies to review and consider any modifications to existing NEPA regulations and guidance.
Also, the administration’s ability to “streamline” NEPA reviews will be constrained by existing and future case law. For example, the August 22 decision from the DC Circuit in Sierra Club v. FERC faulted FERC for not performing an adequate greenhouse gas (GHG) analysis of potential downstream effects. This decision potentially undercuts an action the Trump administration took earlier this year. In April, CEQ withdrew the “Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and Effects of Climate Change in National Environmental Policy Act Reviews,” which had been finalized under the Obama administration. So while CEQ was attempting to potentially narrow the scope of GHG analysis under NEPA, the DC Circuit recently underscored the need for such analysis.
It is worth noting that EO 13807 created a new role for CEQ, which has historically focused on overseeing NEPA implementation to ensure minimum standards were met. Now CEQ is being redirected to scale back on the scope of NEPA reviews in order to streamline the permitting process, especially for infrastructure or other “high priority” projects. A similar change appears to be going on at EPA, where the Office of Federal Activities (which is charged with reviewing other agencies’ EISs) is being refocused on streamlining the NEPA review process.
Finally, CEQ’s notice also mentions ESA, NHPA, and CWA reviews, so it will be interesting to see if there are future recommendations on streamlining those related review processes as well.