Legal Alerts

White House Proposal Returns to 1978 NEPA Review Procedures

Washington, D.C. (October 15, 2021) - The Council on Environmental Quality (CEQ) has requested comments, by November 22, 2021, on proposed revisions to the National Environmental Policy Act (NEPA) regulations. The proposal is Phase I in a two-phased approach that will eventually undo a final rule, effective September 2020, that updated NEPA regulations to reflect decades of agency experience and caselaw interpreting the 1969 Act.

Phase I proposes to reinstitute 1978 definitions for key terms used to determine the scope of review and the range of alternatives required when undertaking any major federal action. Phase II is expected to be an extensive rewrite of the 2020 regulations to incorporate climate change and environmental justice objectives. Businesses with projects, now or in the future, that require federal authorizations will need to pay close attention to these regulatory revisions.

The 2020 update rule intended to scale back the time and cost of producing NEPA analyses by focusing agency resources on evaluating effects that are within the agency’s ability to control and studying only those alternatives that would meet the project purpose. CEQ’s proposal eliminates these efficiencies.

The proposal removes important limits on the type of effects that must be evaluated by returning to the 1978 definitions of “direct,” “indirect,” and “cumulative impacts.” It also eliminates requirements that effects must be “reasonably foreseeable” and have a “reasonably close causal relationship,” and it allows a “but for” causal relationship to include effects otherwise considered too uncertain or speculative.

For example, CEQ proposes to address climate change and environmental justice by requiring evaluation of greenhouse gas emissions, even if the pollution is remote in time or geography from a proposed action and even where an agency does not have the authority to regulate the emissions. Even more, CEQ advocates use of interim social cost of carbon estimates and suggests agencies may view greenhouse gas emissions as a basis for a no action determination.

For more information or assistance with comment development, contact the author of this alert. Visit our Environmental, Land, & Natural Resources Law Practice page for additional alerts in this area of the law.

Author:

Karen C. Bennett, Partner

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