Yesterday President Trump announced the Council on Environmental Quality's final rule, Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act. This rulemaking marks the first substantial revision to the NEPA regulations since their initial promulgation over 40 years ago. The CEQ released the proposed rule in January 2020 for a 60-day public comment period, during which the Council received over 1.1 million comments. Though well received by industry stakeholders as emphasizing best practices to streamline the NEPA review process, the proposal faced heavy criticism from environmental groups for a variety of reforms they believe curtailed opportunities for public participation and altered the scope of traditional NEPA analysis.
The final rule, which comes just a few months after the close of the public comment period despite the enormous public response, largely tracks the proposal and retains some of the more controversial provisions. For example, such provisions include, among others:
- Public Comment Exhaustion Requirements and Presumption of Adequate Consideration (Sections 1500.3; 1502.17; 1503.3(b)(2); 1505.2(b); 1506.6): The final rule, like the proposal, provides that comments and analysis on a draft EIS must be as specific as possible. Those comments that are not received in a timely manner are deemed unexhausted and therefore forfeited. Agencies are then in turn required to summarize in the draft and final EIS all comments received. In the Record of Decision, the agency is required to certify that the agency has considered the alternatives, information, analysis, and objections submitted by state, tribal, and local governments and public commenters for consideration in the development of the final EIS. The final rule provides that final EISs certified in this manner "are entitled to a presumption that the agency has considered the submitted alternatives, information, and analyses." Section 1505.2(b).
- Scope of Effects (Part 1508): The final rule, like the proposal, simplifies the definition of effects by eliminating references to direct and indirect effects and deleting the definition of cumulative effects. The new definition of effects clarifies that effects are changes to the environment that are "reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives," and that a "but for" causal connection is insufficient. The definition further states that "[e]ffects should generally not be considered" (emphasis added) if they are remote in time or geography or are "the product of a lengthy causal chain." CEQ explains in the preamble to the final rule that the word "generally" was added in response to comments received on the proposal and that the change "reflect[s] that there may occasionally be a circumstance where an effect that is remote in time, geographically remote, or the product of a lengthy causal chain is reasonably foreseeable and has a reasonably close causal connection to the proposed action." 85 Fed. Reg. 42204, 43343-44.
- Definition of Major Federal Action (Part 1508): The final rule builds on the changes in the proposal, adding a list of actions that are not considered major federal actions, including "extraterritorial activities or decisions, which means agency activities or decisions with effects located entirely outside of the jurisdiction of the United States."
The administration and CEQ maintain that the new NEPA regulations "will modernize NEPA regulations to facilitate effective and timely environmental reviews by simplifying and clarifying regulatory requirements." Already, several national environmental organizations and state attorneys general have indicated that they will file litigation challenging the validity of the final rules on a host of procedural and substantive issues. This expected litigation will likely delay the potential implementation of these new procedures, perhaps into 2021. Venable plans to release a more detailed analysis of the final rule and its potential impact in the coming days.