Trump Administration Promulgates New NEPA Regulations

On July 15, 2020, the Council on Environmental Quality (CEQ) released the final rule to update its regulations of the National Environmental Policy Act (NEPA), marking the first update in over 40 years. These changes, promulgated by the Trump administration, purport to clarify existing regulations, and streamline the NEPA review process by facilitating inter-agency cooperation. In an effort to speed up agency action, the new regulations emphasize the use of categorical exemptions (CEs) and findings of no significant impact (FONSIs) wherever possible, in part by requiring agencies to amend their policies to create new CEs. These efficiency gains come at the expense of public participation in the environmental review process and the scope and depth of required environmental impact analyses. The final rule became effective September 14, 2020.

Page Limits and Timeline Requirements

The new rules set specific time frames for document completion. Environmental impact statements (EIS) must be completed, and the record of decision signed, within two years from the date of the issuance of the notice of intent. Environmental assessments (EAs) must be completed and published, or the agency must make a finding of no significant impact, within one year from the date of the agency’s decision to prepare an EA. There are also now page limits for EISs of 150-300 pages, depending on their complexity. (40 C.F.R. § 1502.7 (2020).) These limits do not include graphical information and can be waived via written authorization by a senior official of the lead agency. (§§ 1502.7, 1508.1(v).) EAs are restricted to a maximum of 75 pages, not including appendices, without written approval by a senior agency official. (§ 1501.5(f).) The new regulations also no longer require agencies to engage in new studies or research for environmental analyses, further indicating an intent to simplify the environmental review process. (§ 1502.23).

Lead agencies are now required to “develop a schedule, setting milestones for all environmental reviews and authorizations required for implementation of the action . . . .” (40 C.F.R. § 1501.7(i).) If a milestone might be missed, responsible agencies are required to report the issue to the appropriate officials for a timely resolution. (§ 1501.7(j).) CEQ has not specified any procedural requirements for implementing a “timely resolution.” These limitations are intended to simplify environmental analyses and shorten the time required to complete the NEPA review process.

“Direct and Indirect Effects” and “Cumulative Impacts” Eliminated

The new regulations eliminate the distinction between “direct” and “indirect” effects, and replace these classifications with a general definition of “effects or impacts” as “changes to the human environment    . . . that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives . . . .” (40 C.F.R. § 1508.1(g).) “Reasonably foreseeable” is defined as “sufficiently likely to occur such that a person of ordinary prudence would take it into account in reaching a decision.” (§ 1508.1(aa).) Therefore, there must be more than “[a] ‘but for’ causal relationship . . . to make an agency responsible for a particular effect . . .” and trigger environmental review under NEPA. (§ 1508.1 (g)(2).) “Cumulative impacts” have also been eliminated from NEPA regulations, which means that analyses of project impacts in the context of other actions are no longer required. These classification changes indicate that federal agencies would not be compelled to consider global impacts of projects, such as potential effects on climate change. This sentiment is further evidenced by the requirement that agencies should consider only “the affected area (national, regional, or local) and its resources,” and, “in the case of site-specific action, significance would usually depend only upon the effects in the local area” and a change in the definition of “Human environment” to replace “people” with “Americans.” (§§ 1501.3(b)(1), 1508.1(m), italics added.)

NEPA Exemptions

Agencies are required to update their NEPA procedures to make them consistent with the new regulations, primarily by making the procedures more efficient. (40 C.F.R. § 1507.3(c).) CEQ has set a timeline for agencies to make their procedures consistent with the regulations. (§ 1507.3(b).) Updated agency procedures shall prioritize efficiency and include procedural requirements to satisfy these timelines. (§ 1507.3(c).)

To ensure the efficiency of these procedures, CEQ has codified several actions that are explicitly not subject to NEPA, including (1) actions expressly exempt under another statute; (2) where compliance with NEPA would clearly and fundamentally conflict with another statutory requirement; (3) where compliance would be inconsistent with the Congressional intent of another statute; (4) non-major federal actions; (5) non-discretionary actions, in whole or in part; and (6) where the agency has determined another statute’s requirements serve functions of agency compliance. (40 C.F.R. § 1507.3(d).) Agency procedures must be updated to identify certain exempt activities, such as the examples CEQ has provided. (§ 1507.3(d).) Agencies will also need to identify which additional actions are exempt. Where agency procedures conflict with the regulations, the regulations control. (§ 1507.3(a).)

NEPA Thresholds

CEQ has added new NEPA thresholds that direct agencies to consider reasons why NEPA review might be unnecessary for a given action. These thresholds require consideration of (1) whether the proposed action is expressly exempt from NEPA under another statute; (2) whether compliance with NEPA would clearly and fundamentally conflict with the requirements of another statute; (3) whether compliance with NEPA would be inconsistent with Congressional intent expressed in another statute; (4) whether the proposed action is a major Federal action; (5) whether the proposed action, in whole or in part, is a non-discretionary action for which the agency lacks authority to consider environmental effects as part of its decision-making process; and (6) whether the proposed action is an action for which another statue’s requirements serve the function of agency compliance with the Act. (40 C.F.R. § 1501.1(a).) Federal agencies are permitted to make determinations based on these considerations in their agency procedures or on an individual basis. (§ 1501.1(b).)

“Major Federal Action” Redefined

NEPA is triggered when a federal agency engages in a “major federal action.” The new regulations define a “major federal action” as “an activity or decision subject to federal control and responsibility,” rather than actions subject to federal control with effects that might be significant. (40 C.F.R. § 1508.1(q), italics added.) This change means that whether environmental review is required depends on the extent of an agency’s actions or role in the project, rather than the magnitude of the potential environmental impacts posed by the project. Consequently, agencies will likely be afforded greater discretion in deciding what actions are considered “major,” and whether their involvement is limited enough to avoid NEPA review.

CEQ has also included a new list of activities that are not considered major federal actions, which gives agencies broad discretion to avoid NEPA. These exemptions include (1) extraterritorial activities with effects entirely outside the United States; (2) non-discretionary actions; (3) non-final agency actions; (4) judicial or administrative civil or criminal enforcement actions; (5) general revenue sharing funding assistance with no federal agency control over the use of funds; (6) certain loans or guarantees; and (7) non-federal projects with minimal federal funding or involvement. (40 C.F.R. § 1508.1(q).) “Minimal federal funding or involvement” is to be further defined by federal agencies in their NEPA procedures, but a specific monetary limit has not been established by CEQ.

Categorical Exclusions and Findings of No Significant Impact

The new regulations emphasize the issuance of categorical exclusions (CEs) and findings of no significance (FONSIs) wherever possible to increase efficiency and reduce excessive paperwork. (§ 1500.4.) FONSIs are issued when an action that is not otherwise categorically excluded will not have a significant impact on the environment and therefore does not require the preparation of an EIS. (§ 1508.1(k)(1).) CEQ clarified that an agency must prepare a FONSI if the agency determines a proposed action will not have significant effects. (§1501.6(a).)

CEQ has also broadened the definition of categorical exclusion to encourage agencies to issue exclusions. Actions that fall within a CE do not require an EIS or EA. CEs were historically granted for actions that do not individually or cumulatively have a significant effect on the human environment. Federal agencies are now required to update their procedures to identify CEs for actions that “normally do not have a significant effect on the human environment . . . .” (40 C.F.R. §§ 1501.4(a),1508.1(d), italics added.) Even if an activity involves extraordinary circumstances that would result in a significant impact, the new regulations allow agencies to rely on a CE if the effects can be mitigated. (§ 1501.4(b)(1).)

Additionally, an agency may adopt another agency’s decision to grant a CE to a proposed action if both agencies’ actions are substantially the same. (40 C.F.R. § 1506.3.) The regulations also now permit the adoption of prior EISs and EAs, rather than only EISs as previously drafted. Such adoption is permitted after a documented consultation between the agencies to ensure the use of the CE is appropriate, as well as disclosure to the public of the CE being used. (§ 1507.3 (e)(5).) These changes create more opportunities for a project to obtain a CE and consequently avoid in-depth environmental review.

Public Participation

While CEQ claims the new regulations facilitate public participation, the updated regulations diminish noticing requirements and increase substantive requirements for commenters. The new regulations eliminate the “Policy” provision that required agencies to encourage and facilitate public involvement in decisions that affect the quality of the human environment. (See 40 C.F.R. § 1500.2 (1978).) Further, CEQ has removed the provision stating that “NEPA procedures must [e]nsure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA.” (40 C.F.R. § 1500.1(a) (1978).) The scaling back of these requirements reflects a deemphasis on public participation in the environmental review process.

CEQ also removed the requirement that agencies give “notice by mail to national organizations reasonably expected to be interested in the matter and may include listing in the 102 Monitor” and now permits such notice through publication in the Federal Register only. (40 C.F.R. § 1506.6 (b)(2) (2020).) While EISs, comments, and underlying documents are still available via the provisions of the Freedom of Information Act, the new regulations eliminate the requirement to make these materials publicly available without charge to the extent practicable. (§ 1506.6 (f).) CEQ also added a definition of “publish and publication,” which gives broad authority to agencies to determine which methods “efficiently and effectively make environmental documents and information available for review by interested persons   . . . .” (§ 1508.1(y).) Further, when deciding whether to hold public hearings and meetings, agencies no longer need to consider whether there is “[s]ubstantial environmental controversy concerning the proposed action or substantial interest” or requests “for a hearing by another agency with jurisdiction over the action . . . .” (40 C.F.R. § 1506.6(c) (1978).)

The time frame for making public comments has also been restricted. Under the new regulations, federal agencies may set a deadline for providing public comments on an EIS, rather than being required to allow comments for a specific number of days. Federal agencies are also not permitted to grant additional time to comment beyond the deadline. (40 C.F.R. §1503.1(b) (2020).)

Public commenters are required to “provide as much detail as necessary to meaningfully participate and fully inform the agency of the commenter’s position. Comments should explain why the issues raised are important to the consideration of potential environmental impacts and alternatives to the proposed action, as well as economic and employment impacts, and other impacts affecting the quality of the human environment. Comments should reference the corresponding section or page number of the draft environmental impact statement, propose scientific changes to those parts of the statement, where possible, and include or describe the data sources and methodologies supporting the proposed changes.” (40 C.F.R. § 1503.3(a).) Comments should also “be as specific as possible.” (§ 1503.3(b).).

Additionally, CEQ has made participation more burdensome by formalizing and arguably expanding the NEPA exhaustion requirement, including a requirement that commenters identify “any relevant information, studies, or analyses of any kind concerning impacts affecting the quality of the human environment” during the comment period. Comments, information, or objections not submitted by the comment deadline shall be forfeited as not exhausted. (40 C.F.R. § 1500.3(b)(3).) Timely comments will be included in a “summary of submitted alternatives, information, and analyses” section for the lead and cooperating agencies to consider in preparing the draft EIS, as well as published in the final EIS. (§ 1502.17.) An exhaustion requirement makes participation more burdensome, as it obligates commenters to identify all possible environmental issues at the outset of the review process or risk forfeiting those claims. These additional timing and substantive requirements will likely reduce the number of public comments received, as compliance with them requires greater expertise on the part of commenters.

Remedies

CEQ has emphasized that the new regulations do not expand a potential litigant’s options for suing an agency for NEPA violations. The new regulations “create no presumption that a violation of NEPA is a basis for injunctive relief or for a finding of irreparable harm.” (40 C.F.R. § 1500.3(d).) Additionally, the regulations “do not create a cause of action or right of action for violation of NEPA, which contains no such cause of action or right of action.” (Ibid.) Further, “minor, nonsubstantive errors that have no effect on agency decision making shall be considered harmless and shall not invalidate an agency action.” (Ibid.) This last addition opens the door for agencies to argue that an identified error is minor because it would not have affected their decision.

Project Alternatives

The new regulations diminish consideration of project alternatives. The definition of “reasonable alternatives” no longer requires a detailed consideration of alternatives and much of the regulatory language has been softened. (40 C.F.R. §§ 1508.1(z), 1502.14.) The regulations also do not require a rigorous exploration of all reasonable alternatives to proposed actions, but instead encourage agencies to focus on a narrow range of alternatives based on the goals of the applicant and the agency’s authority. (§§ 1502.14, 1502.13.) For example, federal agencies do not need to consider reasonable alternatives outside of that agency’s jurisdiction. (§ 1502.14(c).) Finally, CEQ requires agencies to specifically limit the consideration of alternatives to a “reasonable number,” although CEQ has not set a maximum. (§ 150.2.14(f).) CEQ has therefore reduced federal agencies’ obligation to consider project alternatives that may reduce environmental impacts.

Weakened Oversight of Contractors and Applicants

CEQ has also relaxed oversight of non-agency contractors in EIS and EA preparation. Contractors no longer need to be approved or selected by a lead or cooperating agency before preparing the EIS or EA. Contractors and applicants also do not need to include privileged or confidential trade secrets or other confidential business information in their disclosure statements accompanying an EA or EIS, nor do they need to specify that they have no financial or other interest in the outcome of the project. (40 C.F.R. § 1506.5(b)(4).)

Interagency Collaboration

The new regulations promote interagency collaboration with federal, state, tribal, and local procedures, as well as joint documents to streamline the NEPA review process. In general, agencies are required “[t]o the maximum extent practicable, jointly issue environmental documents with the lead agency. (40 C.F.R. § 1501.8(b)(8).) “Engaging in interagency cooperation” while an EIS or EA is being prepared is now required, instead of just emphasized. (§ 1500.5(d).) Federal agencies are also required to coordinate “their environmental program websites, including use of shared databases or application programming interface . . . .” (§ 1507.4(b).) Federal, state, tribal, and local agencies are permitted to “jointly prepare or adopt environmental documents . . . .” (§§ 1500.4(p), 1500.5(j), 1501.7(b).) Where a proposal will require action by multiple federal agencies, the agencies must prepare a single EIS and issue a joint record of decision, or prepare a single EA and issue a joint finding of no significant impact, depending on the agencies’ determination. (§ 1501.7(g).)

General Language and Definition Changes

CEQ has included various definition changes that reflect a general relaxing of the regulations. For example, CEQ removed the definition of “significantly,” which required considerations of both context and intensity of potential environmental effects. This elimination diminishes the depth of environmental analysis required under NEPA. The new regulations also include subtle language modifications from “shall” to “should” or “may,” and “possible” to “practicable,” resulting in an overall weakening of NEPA requirements.

Additionally, CEQ has placed a greater emphasis on economic considerations in the NEPA review process. For example, the revised “[p]urpose and policy” section requires consideration of economic requirements of present and future generations. (40 C.F.R. § 1500.1.) Additionally, the environmental consequence section of an EIS must now include “economic and technical considerations, including the economic benefits of the proposed action.” (§ 1502.16.) While economic effects were always a factor in the NEPA review process, they are now a stricter and more prevalent requirement. For example, public comments are must now include an explanation of why the issues raised therein are important to economic and employment impacts. (§ 1503.3.) Economic impacts are also a required consideration for agencies when deciding whether to refer environmental objections on a matter to CEQ. (§ 1504.2(g).) Additionally, economic feasibility is mandatory for an alternative to be considered “reasonable,” where it was previously just one factor agencies could consider when comparing alternatives. (§§ 1505.2(a)(2), 1508.1(z).)

Implications

As a result of these new regulations, federal agencies will be required to develop or revise proposed NEPA procedures to implement the changes within a year of the effective date. (40 C.F.R. § 1507.3(b).) These procedures should have an emphasis on “efficiency.” (§ 1507.3(c).) Agencies’ proposed procedures will be subject to review by the public and by CEQ for conformity with NEPA and the new regulations. (§ 1507.3(a)(2).) Federal agencies are prohibited from imposing additional procedures or requirements beyond those delineated in the new regulations. (Ibid.) Agencies are also barred from relying on previous guidance that conflicts with the new regulations, except for existing agency CEs, which have been deemed by CEQ to be consistent with the regulations. (§§ 1506.7, 1507.3(a).) Ongoing activities and environmental documents that began before the effective date are permitted to rely on either the old or new regulations. (§ 1506.13.)

Veronika Morrison