Regulatory Alert: AAAE Responds to White House's Proposed Updates to NEPA Reviews

On September 29, AAAE submitted comments to the White House's Council on Environmental Quality (CEQ) in response to a proposed rule that would make significant changes to the regulations that govern National Environmental Policy Act (NEPA) reviews. One of the major goals of the proposal is to accelerate infrastructure project reviews and ensure that climate change and environmental justice concerns are considered during the NEPA review process. The proposed rule would also implement reforms that were enacted into law in June through the Fiscal Responsibility Act (FRA), commonly referred to as the debt ceiling bill.

In our comments, AAAE 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, such as the Federal Aviation Administration (FAA), 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).

You can read AAAE's comments here. We appreciate everyone who provided feedback to us during our webinar discussion last month.

Background on Prior NEPA Reform Efforts. In 2020, the Trump Administration's CEQ finalized a rule that comprehensively rewrote NEPA regulations, including establishing presumptive time limits for the preparation of environmental review documents; improving coordination of NEPA reviews involving multiple agencies; and changing the applicability and scope of NEPA reviews; among other things. Since taking office, the Biden Administration has sought to roll back these changes, starting with a narrow 'phase 1' rulemaking that was finalized last year to ensure that agencies reviewed all relevant environmental effects, including those associated with climate change, during environmental reviews.

Biden Administration's NEPA Phase 2 Rulemaking. For the past few years, the Biden Administration has signaled its intent to release a 'phase 2' rulemaking that would make a wide range of changes to NEPA reviews for the purpose of advancing specific climate change and environmental justice goals. It was finally released in late July. While developing the proposal, Congress passed a series of NEPA-related reforms through the FRA during debt ceiling negotiations in June. The proposal released in July would implement changes that were included in that debt ceiling bill. The administration is informally referring to this proposal as the 'Bipartisan Permitting Reform Implementation Rule,' although the official name is the NEPA Phase 2 Rulemaking. You can read additional details about the proposal in our July 28 Regulatory Alert.

AAAE's Response to NEPA Phase 2 Rulemaking. In our comments and response, AAAE highlighted and emphasized several key recommendations for CEQ as the council develops a final rule and implements provisions from the FRA:

• CEQ should provide greater clarity on what constitutes 'communities with environmental justice concerns' and how agencies are expected to evaluate the effects of proposed actions on such communities and climate change. Without such clarity, some of the proposed changes could introduce confusion, expand the scope of reviews, and lead to more complicated and lengthier reviews.

• CEQ should take additional steps to ensure federal agencies are meeting the one- and two-year deadlines set by statute for completing environmental assessments (EAs) and environmental impact statements (EISs). This includes not unnecessarily extending the deadlines or prolonging the period between the time an applicant initiates a proposed action and when the 'clock begins' for purposes of the deadlines.

• CEQ should require agencies to allow applicants or their contractors to have a greater role in the preparation of environmental documents and decisions, including EAs, EISs, Findings of No Significant Environmental Impact (FONSIs), or records of decision, so long as their involvement is voluntary and agreed upon by the applicant.

• CEQ should establish deadlines for agencies to process CE requests from applicants. In recent years, FAA has been routinely taking over a year to process a CE from airports, the same amount of time that Congress and CEQ expect agencies to complete an EA. We believe this is an unacceptable outcome.

• CEQ should streamline the process and make it easier for one agency to use or apply CEs from another agency. Some of our members have indicated that the process for an agency to use another agency's CE is burdensome and remains an underutilized tool.

What's Next? CEQ will begin to review over 147,900 comments that the council received in response to its request for feedback. CEQ is widely expected to move forward with a final rule as soon as possible, and we expect it to be finalized in the second half of 2024 before the next presidential election. Depending on the outcome of that, we may experience additional changes to the NEPA regulations.

It is important to note that an update to the CEQ regulations governing NEPA reviews would require FAA and other federal agencies to update its NEPA-related guidance, which would be a separate review process that would take additional time. We will keep members apprised of any updates on NEPA regulations and/or FAA's implementation guidance.