On November 23, the Department of Transportation (DOT) proposed significant changes to its National Environmental Policy Act (NEPA) regulations. The DOT proposal implements the Council on Environmental Quality (CEQ) NEPA regulations that became effective in September and which extensively revised the procedures all federal agencies must follow. Comments on the DOT proposal are due December 23. While this is a tight timeframe, DOT may try to stick to that deadline in order to be able to issue the final rules by January 20.
DOT issued a statement that the proposed rule would help the department "complete environmental review more efficiently in accordance with streamlining efforts." In keeping with the new CEQ regulations, some of the most significant changes in the DOT proposed rule include:
- Elimination of the requirement to consider "cumulative effects" and removing any reference to "indirect effects." This is significant, as DOT agencies often struggle with the proper scope of cumulative impacts and litigants often focus on cumulative effects in challenging NEPA documents, including climate change impacts.
- A presumptive time limit of one year for environmental assessments (EA) and two years for environmental impact statements (EIS). If DOT agencies are able to stick to these deadlines, this would represent a significant change over the current average of over five years.
- Requires consideration only of effects that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action.
- Excludes activities with minimal federal funding or involvement.
- Specifies presumptive page limits: 150 for EISs (300 if complex).
- Requires supplementation of a NEPA document only if sufficient federal control remains, and a decision remains to occur.
- The DOT proposal identifies several new categorical exclusions (CE) for routine operational activities, and would expressly allow one DOT agency to apply the CE of another. For the most part, the more substantive categorical exclusions are listed in the DOT sub-agency level, rather than the department level, so the ability of one sub-agency to apply the CE of another could add significant flexibility in excluding actions from NEPA review.
These are major changes to the NEPA process, and it remains to be seen if they will stick. The CEQ NEPA regulations have been challenged, but so far survived a preliminary injunction motion, so the regulations remain in effect. If the CEQ rules are invalidated by a court or repealed by the Biden administration, DOT will need to revise its NEPA rules accordingly. DOT sub-agencies such as the Federal Railroad Administration (FRA) must now update their respective NEPA procedures by September 2021.
While the DOT rules are only in the proposal stage, the CEQ NEPA rules are already effective and applicable to all NEPA reviews that begun after September 14, 2020. Importantly, the CEQ regulations and DOT proposal provide that agencies may apply the new CEQ regulations to ongoing activities and environmental documents that begun before the effective date as well. Thus, DOT agencies could apply the new CEQ rules to simplify pending NEPA reviews, including potentially removing cumulative impact sections. Applicants with pending NEPA reviews will need to carefully consider the new CEQ rules and work with the lead agency on the pros and cons of changing the scope of review mid-stream. There will be significant litigation over how the CEQ rules should be applied in individual cases, so some agencies and applicants may try to avoid being one of the first to implement the new rules, including omission of cumulative impacts.