Expected Regulatory Proposal to Overhaul NEPA

The Council on Environmental Quality (CEQ) is expected to release proposed regulations to substantially modify its rules implementing the 1970 National Environmental Policy Act, also known as NEPA. NEPA and its implementing regulations require federal agencies to conduct environmental review and impact assessment and engage the public on major federal actions such as infrastructure, energy extraction, and pipeline projects. The effort to modify NEPA rules is a response to a series of Executive Orders issued since 2017 to streamline regulatory processes, remove obstacles to infrastructure and energy development, and reduce other regulatory burdens on industry.

In June 2018, CEQ issued an Advance Notice of Proposed Rulemaking to solicit recommendations from the public on potential revisions and “ensure a more efficient, timely, and effective NEPA process.” CEQ received more than 12,000 comments in response and submitted proposed regulations to the Office of Management and Budget (OMB) in October 2019. Once approved, OMB will publish the proposed rule changes in the Federal Register. Expected changes to the NEPA process include expansion and liberalization of the use of categorical exclusions, changes to the scope of review, and overhauling the required analysis of alternatives and mitigation measures. CEQ’s proposed NEPA rule revisions, if finalized through the federal rulemaking process, are almost certain to be challenged in court.

CEQ also published draft guidance in June 2019 to replace Obama-era guidance on how federal agencies should address greenhouse gas emissions when evaluating proposed major federal actions in accordance with NEPA. The guidance narrows the focus of review and provides that only minimal qualitative analysis might be necessary in a number of circumstances, including when emissions are not substantial, analysis is not practical, or quantifying emissions would be overly speculative.

KMCL attorneys offer deep experience on NEPA related matters and involvement in administrative rulemaking, and welcome any questions about the effects of these regulatory revisions.