Regulatory Alert: White House Finalizes Significant Updates to NEPA Review Process
White House Finalizes Significant Updates to NEPA Review Process
May 1, 2024
On April 30, the White House’s Council on Environmental Quality (CEQ) released a final rule that makes a wide range of changes to the regulations that govern National Environmental Policy Act (NEPA) reviews. The rulemaking has been a major priority since President Biden came into office. The goal of the rule is to roll back many of the changes that were made to NEPA reviews in 2020 by the previous administration; ensure that climate change and environmental justice concerns are considered during the NEPA review process; and implement reforms that Congress enacted into law in June 2023 through the Fiscal Responsibility Act (FRA), known as the debt ceiling bill.
CEQ’s updated NEPA regulations will go into effect on July 1. Each federal agency, including the Federal Aviation Administration (FAA), must adhere to CEQ’s NEPA regulations and document its policy and procedures through NEPA implementation guidance (e.g., FAA Order 1050.1F). The rule requires agencies to update their NEPA guidance no later than July 1, 2025, to ensure they are in compliance with the updated provisions. Before finalizing any changes, however, agencies have to solicit comments on any updated guidance. This will give AAAE and other stakeholders an opportunity to weigh in on how FAA implements some of CEQ’s new directives.
While the rule is set to go into effect this summer, the outcome of the presidential election will undoubtedly affect whether these changes are fully implemented by agencies in 2025. If there is a change in administrations, we would expect further changes to the NEPA regulatory framework. In either case, we will keep members apprised of any possible updates to FAA’s implementation guidance.
Background on NEPA Reform Efforts. In 2021, the Biden Administration signaled its intent to roll back some of the reforms that President Trump finalized in 2020, particularly those that limited the scope of potential impacts that are considered during the environmental review process. Over the past few years, CEQ has been working on a rulemaking that would make a wide range of changes to NEPA reviews for the purpose of advancing specific climate change and environmental justice goals. While developing the proposal, Congress passed a series of NEPA-related reforms through the FRA during debt ceiling negotiations in June 2023.
In July 2023, CEQ finally released its proposed rule, which also included the reforms that were passed through the FRA. One of the major themes from the proposed changes was an effort to ensure that federal agencies consider climate change and environmental justice concerns during the NEPA review process. The administration is informally referring to this proposal as the “Bipartisan Permitting Reform Implementation Rule,” although the official name is the NEPA Implementing Regulations Revisions Phase 2.
AAAE’s Response to CEQ’s NEPA Proposed Rule. AAAE submitted comments to CEQ in response to its proposal last September. We emphasized the need for CEQ to ensure that any changes to the regulatory framework provide greater certainty for airports during NEPA reviews, eliminate unnecessary requirements, make the process more efficient, and lead to more consistent and timely decision-making. This includes providing greater clarity on how agencies are expected to consider the effects of proposed actions on climate change and communities with environmental justice concerns. We also urged CEQ to, among other things, take additional steps to ensure that agencies are meeting their deadlines for completing environmental documents and establish a deadline for agencies to process categorical exclusions (CEs).
Summary of CEQ’s Updated NEPA Regulations. Neither CEQ nor the White House has released a fact sheet or other summary of all the changes and implications that would result from the rule. A redlined version of CEQ’s NEPA regulations, available here, demonstrates the wide breadth of the changes. Based on our initial review, CEQ does not appear to have made major changes from the proposed rule that was released last year. Changes in the final rule include, among others:
What’s Next? CEQ’s updated NEPA regulations will go into effect on July 1. The rule requires agencies to update their NEPA implementation guidance no later than July 1, 2025, to ensure they are in compliance with the updated provisions. As part of the process of updating this guidance, agencies must request public comment on any proposed changes. This means AAAE and other stakeholders will have an opportunity to weigh in on how FAA proposes to implement these new directives from CEQ.
It is important to note that the presidential election could halt implementation of CEQ’s updated NEPA regulations in 2025 if there is a change in administrations. We will keep our members apprised of any notable updates, especially when FAA releases any proposed updates to its NEPA implementation guidance.
Resources on CEQ’s NEPA Rulemaking
May 1, 2024
On April 30, the White House’s Council on Environmental Quality (CEQ) released a final rule that makes a wide range of changes to the regulations that govern National Environmental Policy Act (NEPA) reviews. The rulemaking has been a major priority since President Biden came into office. The goal of the rule is to roll back many of the changes that were made to NEPA reviews in 2020 by the previous administration; ensure that climate change and environmental justice concerns are considered during the NEPA review process; and implement reforms that Congress enacted into law in June 2023 through the Fiscal Responsibility Act (FRA), known as the debt ceiling bill.
CEQ’s updated NEPA regulations will go into effect on July 1. Each federal agency, including the Federal Aviation Administration (FAA), must adhere to CEQ’s NEPA regulations and document its policy and procedures through NEPA implementation guidance (e.g., FAA Order 1050.1F). The rule requires agencies to update their NEPA guidance no later than July 1, 2025, to ensure they are in compliance with the updated provisions. Before finalizing any changes, however, agencies have to solicit comments on any updated guidance. This will give AAAE and other stakeholders an opportunity to weigh in on how FAA implements some of CEQ’s new directives.
While the rule is set to go into effect this summer, the outcome of the presidential election will undoubtedly affect whether these changes are fully implemented by agencies in 2025. If there is a change in administrations, we would expect further changes to the NEPA regulatory framework. In either case, we will keep members apprised of any possible updates to FAA’s implementation guidance.
Background on NEPA Reform Efforts. In 2021, the Biden Administration signaled its intent to roll back some of the reforms that President Trump finalized in 2020, particularly those that limited the scope of potential impacts that are considered during the environmental review process. Over the past few years, CEQ has been working on a rulemaking that would make a wide range of changes to NEPA reviews for the purpose of advancing specific climate change and environmental justice goals. While developing the proposal, Congress passed a series of NEPA-related reforms through the FRA during debt ceiling negotiations in June 2023.
In July 2023, CEQ finally released its proposed rule, which also included the reforms that were passed through the FRA. One of the major themes from the proposed changes was an effort to ensure that federal agencies consider climate change and environmental justice concerns during the NEPA review process. The administration is informally referring to this proposal as the “Bipartisan Permitting Reform Implementation Rule,” although the official name is the NEPA Implementing Regulations Revisions Phase 2.
AAAE’s Response to CEQ’s NEPA Proposed Rule. AAAE submitted comments to CEQ in response to its proposal last September. We emphasized the need for CEQ to ensure that any changes to the regulatory framework provide greater certainty for airports during NEPA reviews, eliminate unnecessary requirements, make the process more efficient, and lead to more consistent and timely decision-making. This includes providing greater clarity on how agencies are expected to consider the effects of proposed actions on climate change and communities with environmental justice concerns. We also urged CEQ to, among other things, take additional steps to ensure that agencies are meeting their deadlines for completing environmental documents and establish a deadline for agencies to process categorical exclusions (CEs).
Summary of CEQ’s Updated NEPA Regulations. Neither CEQ nor the White House has released a fact sheet or other summary of all the changes and implications that would result from the rule. A redlined version of CEQ’s NEPA regulations, available here, demonstrates the wide breadth of the changes. Based on our initial review, CEQ does not appear to have made major changes from the proposed rule that was released last year. Changes in the final rule include, among others:
- Enabling agencies to apply another agency’s CE to a proposed action or category of actions;
- Clarifying that agencies can jointly develop CEs and establish CEs through programmatic environmental reviews and other planning processes;
- Requiring agencies to set schedules to meet the one- and two-year deadlines for completing environmental assessments (EA) and environmental impact statements (EIS), respectively;
- Clarifying the roles and responsibilities of lead and cooperating agencies;
- Highlighting climate change and disproportionate adverse health and environmental effects on communities with environmental justice concerns as important considerations when evaluating project alternatives;
- Requiring, during the preparation of an EIS, the evaluation of reasonably foreseeable climate change-related effects, including (a) the quantification of greenhouse gas (GHG) emissions from the proposed action and reasonable alternatives, where feasible, and (b) the reasonably foreseeable effects of climate change on the proposed action and alternatives;
- Requiring, during the preparation of an EIS, the discussion of reasonably foreseeable disproportionate and adverse human health and environmental effects on communities with environmental justice concerns;
- Promoting the adoption of mitigation measures that address significant adverse human health and environmental effects of proposed federal actions—if such actions disproportionately and adversely affect communities with environmental justice concerns;
- Requiring and promoting agency engagement with communities with environmental justice concerns as part of the public engagement process;
- Encouraging publication of an agency determination where the agency determines to apply a CE when an extraordinary circumstance exists;
- Requiring notice and public comment when an agency establishes a CE through a programmatic review; and
- Clarifying that an agency must invite public comment on a draft EA if the agency publishes the document.
What’s Next? CEQ’s updated NEPA regulations will go into effect on July 1. The rule requires agencies to update their NEPA implementation guidance no later than July 1, 2025, to ensure they are in compliance with the updated provisions. As part of the process of updating this guidance, agencies must request public comment on any proposed changes. This means AAAE and other stakeholders will have an opportunity to weigh in on how FAA proposes to implement these new directives from CEQ.
It is important to note that the presidential election could halt implementation of CEQ’s updated NEPA regulations in 2025 if there is a change in administrations. We will keep our members apprised of any notable updates, especially when FAA releases any proposed updates to its NEPA implementation guidance.
Resources on CEQ’s NEPA Rulemaking
- CEQ’s May 1 NEPA Final Rule
- White House’s April 30 Press Release on CEQ’s NEPA Rule
- AAAE’s September 30 Response to CEQ’s NEPA Proposed Rule
- AAAE's October 2 Regulatory Alert on Response to CEQ's NEPA Proposed Rule
- CEQ’s Special Environmental Assessment of NEPA Rule
- Regulatory Docket for CEQ’s NEPA Rule
