Amendments to NEPA Regulations Finalized

On July 15, 2020, the White House Council on Environmental Quality (CEQ) issued long-anticipated amendments to the National Environmental Policy Act (NEPA) regulations in a final rule. NEPA is a bedrock environmental statute which requires federal agencies to conduct environmental review and impact assessment before engaging in major actions such as infrastructure, energy extraction, and pipeline construction projects. The NEPA review process can take years to complete because the regulations require the lead agency to consider the proposed action’s impacts on climate change and community concerns, among other things.

The amendments are part of the Trump administration’s efforts to speed up the NEPA review process for the benefit of industry, with President Trump describing the review process as “needless bureaucracy that is holding back our citizens” at a recent press conference in Atlanta, Georgia.

For any “major federal action significantly impacting the human environment,” NEPA requires agencies to consider, among other things, “the environmental impact of the proposed action,” and “any adverse environmental effects which cannot be avoided should the proposal be implemented.” 42 U.S.C. § 4332. Because the statute does not define several key terms, including “effects,” the definition of these terms in NEPA regulations control. Most notably, the regulatory amendments significantly narrow the definition of what “effects” must be considered in project applications, now limited to only those affecting the “human environment,” being “reasonably foreseeable” and having “a reasonably close causal relationship to the proposed action.”

Environmental groups argue that these rollbacks will shirk government agencies’ responsibility to factor in climate change, with especially severe consequences for communities of color, who are already disproportionately impacted by large construction projects. Accordingly, several major environmental organizations, including Earthjustice and Southern Environmental Law Center, have already taken to the courts to challenge the rollbacks. One such group, the Natural Resources Defense Council, argues that the amendments violate the Administrative Procedure Act because they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

The final rule goes into effect on Sept. 14, 2020, unless otherwise altered by Congress, and will apply to any NEPA review begun after that date. KMCL attorneys are closely monitoring these changes and welcome any questions.