The White House’s Council on Environmental Quality (CEQ) today published in the Federal Register a notice of proposed rulemaking (NPRM) titled, “Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act.” The NPRM is a significant milestone and the latest in a series of actions taken by the Trump administration and the CEQ to “modernize and clarify” the CEQ’s National Environmental Policy Act (NEPA)-implementing regulations to “facilitate more efficient, effective, and timely NEPA reviews by Federal agencies in connection with proposals for agency action.” The CEQ is seeking public comments on the NPRM within 60 days—by March 10, 2020. It also plans to hold public meetings on the proposed rule in Denver, Colorado, on February 11, 2020, and in Washington, DC, on February 25, 2020.
NEPA, which was enacted in 1970, has been construed by the federal courts as a purely procedural statute that requires federal agencies to assess the environmental impacts of proposed major federal actions as part of their decisionmaking processes. NEPA also established the CEQ to monitor and foster federal agency compliance with NEPA. To those ends, the CEQ promulgated regulations in 1978. The CEQ regulations also require federal agencies to develop their own implementing procedures. Although the CEQ amended its regulations in 1986, it has not comprehensively revised or updated them since their original promulgation.
According to the NPRM, the CEQ found that, for the period 2010–2017 and across the federal government, the average time for completion of a final environmental impact statement (EIS) and issuance of a record of decision (ROD) was more than 4.5 years, and the median was 3.6 years, with one quarter of the EISs requiring more than six years. It also found that the average length of an EIS is over 600 pages. As the NPRM notes, the NEPA review process frequently has proven to be lengthy, costly, and complex. Consequently, in August 2017, President Donald Trump issued Executive Order 13807, establishing a “One Federal Decision” policy that includes a two-year goal for completing environmental reviews for major infrastructure projects, and directs CEQ to consider revisions to modernize its regulations. In June 2018, CEQ issued an Advance Notice of Proposed Rulemaking (ANPRM) requesting comment on potential updates to its regulations. CEQ received and reviewed over 12,500 comments in preparing the NPRM. We have discussed prior CEQ actions in our earlier Up & Atom and Power & Pipes blogs.
The proposed rule has four major elements: (1) to modernize, simplify, and accelerate the NEPA process; (2) clarify terms, application, and scope of NEPA review; (3) enhance coordination with states, tribes, and localities; and (4) reduce unnecessary burdens and delays. According to CEQ, the proposed revisions, which include both process-oriented and substantive changes, would align the regulations with the text of the NEPA statute, account for changes in technology, increase public participation, and facilitate the use of previous studies, analyses, and environmental documents. Some of the key proposed revisions include, among others:
- establishing presumptive time limits of two years for completion of EISs and one year for completion of environmental assessments (EAs);
- specifying presumptive page limits (75 pages for EAs, 150 pages for most final EISs, and 300 pages for final EISs “for proposals of unusual scope or complexity”);
- requiring joint schedules, a single EIS, and a single ROD, where appropriate, for EISs involving multiple agencies, and strengthening the role of the lead agency;
- providing direction regarding the threshold consideration of whether NEPA applies to a particular action;
- requiring agencies to summarize alternatives, analyses, and information submitted by commenters and to certify consideration of submitted information in the ROD;
- simplifying the definition of environmental “effects” and clarifying that effects must be reasonably foreseeable and have a reasonably close causal relationship to the proposed action, consistent with the US Supreme Court’s decision in Department of Transportation v. Public Citizen, 541 U.S. 752, 767-68 (2004);
- stating that analysis of cumulative effects is not required under NEPA;
- clarifying that “major federal action” does not include nondiscretionary decisions and non-federal projects (those with minimal federal funding or involvement);
- clarifying that any “reasonable alternatives” subject to consideration must be technically and economically feasible;
- facilitating use of categorical exclusions and EAs, including allowing agencies to establish procedures for adopting other agencies’ categorical exclusions; and
- allowing applicants/contractors to assume a greater role in preparing EISs under the supervision of an agency.
The proposed revisions, if implemented in their current form, would constitute a major overhaul of the CEQ’s NEPA regulations by substantially streamlining the environmental review process for major federal actions. The CEQ’s regulations, in turn, underpin the NEPA-implementing procedures of myriad other federal agencies—including the US Department of Energy, the Federal Energy Regulatory Commission (FERC), the Nuclear Regulatory Commission (NRC), and the US Environmental Protection Agency. Thus, the potential effects of the proposed rule changes are far-reaching for the energy and public infrastructure sectors, and could facilitate more efficient implementation of energy production/generation projects for all major energy sources (i.e., renewable, fossil, nuclear, and hydroelectric sources) as well as transportation projects.
To date, the commercial nuclear power industry has expressed strong support for the types of rule changes proposed by the CEQ in its NPRM. The NRC Staff’s NEPA reviews often have proven to be both time-intensive and complex, due in part to the time required for applicant responses to agency requests for additional information (RAIs), the Staff’s preparation of its draft and final EISs (including resolution of RAIs and responses to public comments), and NRC interactions with other federal and state agencies having jurisdiction over some aspect of the licensing action under review. Additionally, the NRC’s conduct of adjudicatory hearings on contested aspects of the Staff’s NEPA review—a practice that is unique to the NRC—can introduce considerable additional burden and delay to the licensing process.
Efficient NRC licensing reviews, including environmental evaluations, are critically important for an industry that is seeking to extend the operating lives of the current power reactor fleet via subsequent (second) license renewals and to license new nuclear reactor technologies for future commercial deployment. Notably, the NRC has established (and, to date, has adhered to) an accelerated milestone schedule for the approval of subsequent license renewal applications. The proposed rule changes, if implemented, would reinforce this NRC objective, and perhaps foster a more streamlined and efficient new reactor licensing process. However, at this juncture, it is difficult to discern exactly how the NRC, as an independent executive agency, might modify its own NEPA regulations in 10 CFR Part 51 in response to the CEQ’s ongoing rulemaking activities.
Similarly, if adopted, the CEQ’s NEPA regulations would directly impact FERC’s review of infrastructure certification applications, such as those in the natural gas sector. Such regulations may well directly impact FERC’s ongoing review of its longstanding natural gas certification policy statement, which guides applicants and the commission in the analyses applied to FERC’s decision whether to approve or disapprove applications for interstate natural gas pipeline projects. Further, the proposed NEPA regulation’s treatment of environmental “effects” and cumulative impacts would directly address the extent to which FERC considers potential greenhouse gas emissions resulting from a proposed natural gas pipeline project—an issue that has contributed to contentious proceedings in the natural gas sector and produced several orders and public statements reflecting a hotly divided commission.
One thing is certain: the NPRM will trigger a torrent of public comments that run the gamut, from staunch opposition to unbridled support. NEPA is viewed by many as the nation’s seminal environmental statute and by others as a litigation-driven process stretched well beyond its original intent. As reflected in the general media, critics already have lambasted the proposed rule changes for purportedly limiting the ability of federal agencies to consider the climate change-related effects of their actions and fast-tracking fossil fuel projects. Supporters, on the other hand, view them as a much-needed and long-overdue update to a bloated NEPA review process that hinders efficient agency review of major beneficial infrastructure projects. As we have previously noted, it will be important for industry entities that depend on federal agency action when advancing projects and securing permits to actively participate in the proposed rulemaking, and to provide meaningful comments that will help the CEQ build a sufficient agency record to defend against any later litigation challenges to new regulations.