Regulatory Alert: White House Releases Proposed Rulemaking to Revise NEPA Regulations
October 6, 2021
Today the White House's Council on Environmental Quality (CEQ) released a proposed rulemaking to revise several key provisions of the regulations that govern environmental reviews performed pursuant to the National Environmental Policy Act (NEPA). The proposal released today would require federal agencies to examine a broader scope of the environmental impacts of a proposed project during a NEPA review. The proposal is part of a broader initiative from President Biden to roll back certain reforms that were made to the NEPA environmental review process and finalized last year, and to ensure the federal government is considering the effects of greenhouse gas (GHG) emissions and climate change during federal permitting decisions. 
Since the reforms went into effect in 2020, the airport community has faced uncertainty over the future of the NEPA review process. In June, CEQ extended the deadline for federal agencies, including the Federal Aviation Administration (FAA), to update their guidance to conform to the new NEPA regulations. And there will be continued uncertainty moving forward. CEQ is planning to release a second proposed rulemaking in the future that will propose a broader set of NEPA-related changes. 
AAAE remains engaged with members on these ongoing initiatives because of their potential impact on airports. AAAE is focused on ensuring that many of the key 2020 NEPA reforms stay intact, such as time limits on preparation of environmental documents; improved coordination of reviews involving multiple agencies; and modernization of the process for engaging with the public; among others. AAAE believes it is important that airports are not experiencing delayed, burdensome, or unwieldy NEPA environmental reviews.
2020 NEPA Modernization. In July 2020, CEQ finalized a rule that comprehensively rewrote NEPA regulations with the goal of accelerating the approval of infrastructure project reviews. The rule, which went into effect in September 2020, established presumptive time limits for the preparation of environmental review documents; improved coordination of NEPA reviews involving multiple agencies; clarified the applicability and scope of NEPA reviews; modernized the process for engaging with the public; and made several changes regarding the level of review required by NEPA. The changes required FAA and other federal agencies to update their NEPA implementation procedures by September 2021. 
Biden Administration's Approach to NEPA. The current administration has taken a dual-pronged approach to rolling back certain NEPA-related reforms that went into effect in 2020. First, as reported in our June 29 Regulatory Alert, CEQ extended the deadline by two years for federal agencies, including FAA, to develop or update their guidance for implementing NEPA provisions. Second, CEQ has planned two phases of rulemakings that would revise NEPA regulations. The first phase occurred today with the release of a proposal to expand the scope of reviews to ensure that GHG emissions and climate change effects are being considered. The second proposed rulemaking would make broader changes to the NEPA review process and is projected to be released by the end of this year for public comment. 
Summary of CEQ's 'Phase 1' Proposal. There are two major changes included in today's proposed rulemaking: 
• Expanding Scope of 'Impacts' or 'Effects.' NEPA requires federal agencies to examine the environmental effects of proposed actions and alternatives and any adverse effects that cannot be avoided if the proposed action is implemented. The proposal would largely restore the definition of 'effects' and 'impacts' that existed prior to the 2020 reforms. More specifically, this would require agencies to assess a broader scope of effects and understand how incremental impacts of how a proposed action can contribute to cumulative environmental problems such as air pollution and climate change, among others. 
• Allowing Federal Agencies to Impose Additional NEPA Requirements. In 2020, CEQ finalized regulatory language that prevented federal agencies from developing guidance that was inconsistent with CEQ's NEPA regulations. The proposal released today would allow agencies to develop procedures and requirements beyond what CEQ requires. CEQ believes this would enable agencies to address their specific programs in environmental reviews and align guidance with their unique mission and circumstances. 
What's Next? CEQ plans to publish the proposed rulemaking in the Federal Register tomorrow. AAAE will be engaging with members through its Environmental Services Committee to determine whether to file comments in response to the proposed rule, which must be provided to CEQ on or before Monday, November 22. CEQ will be hosting two online public meetings for the proposed rule on Tuesday, October 19, at 1-4 pm ET, and Thursday, October 21, at 5-8 pm ET. You can register here. AAAE will continue to be engaged on this critical issue to ensure airports are not experiencing delayed, burdensome, or unwieldy NEPA environmental reviews. 
Today the White House's Council on Environmental Quality (CEQ) released a proposed rulemaking to revise several key provisions of the regulations that govern environmental reviews performed pursuant to the National Environmental Policy Act (NEPA). The proposal released today would require federal agencies to examine a broader scope of the environmental impacts of a proposed project during a NEPA review. The proposal is part of a broader initiative from President Biden to roll back certain reforms that were made to the NEPA environmental review process and finalized last year, and to ensure the federal government is considering the effects of greenhouse gas (GHG) emissions and climate change during federal permitting decisions. 
Since the reforms went into effect in 2020, the airport community has faced uncertainty over the future of the NEPA review process. In June, CEQ extended the deadline for federal agencies, including the Federal Aviation Administration (FAA), to update their guidance to conform to the new NEPA regulations. And there will be continued uncertainty moving forward. CEQ is planning to release a second proposed rulemaking in the future that will propose a broader set of NEPA-related changes. 
AAAE remains engaged with members on these ongoing initiatives because of their potential impact on airports. AAAE is focused on ensuring that many of the key 2020 NEPA reforms stay intact, such as time limits on preparation of environmental documents; improved coordination of reviews involving multiple agencies; and modernization of the process for engaging with the public; among others. AAAE believes it is important that airports are not experiencing delayed, burdensome, or unwieldy NEPA environmental reviews.
2020 NEPA Modernization. In July 2020, CEQ finalized a rule that comprehensively rewrote NEPA regulations with the goal of accelerating the approval of infrastructure project reviews. The rule, which went into effect in September 2020, established presumptive time limits for the preparation of environmental review documents; improved coordination of NEPA reviews involving multiple agencies; clarified the applicability and scope of NEPA reviews; modernized the process for engaging with the public; and made several changes regarding the level of review required by NEPA. The changes required FAA and other federal agencies to update their NEPA implementation procedures by September 2021. 
Biden Administration's Approach to NEPA. The current administration has taken a dual-pronged approach to rolling back certain NEPA-related reforms that went into effect in 2020. First, as reported in our June 29 Regulatory Alert, CEQ extended the deadline by two years for federal agencies, including FAA, to develop or update their guidance for implementing NEPA provisions. Second, CEQ has planned two phases of rulemakings that would revise NEPA regulations. The first phase occurred today with the release of a proposal to expand the scope of reviews to ensure that GHG emissions and climate change effects are being considered. The second proposed rulemaking would make broader changes to the NEPA review process and is projected to be released by the end of this year for public comment. 
Summary of CEQ's 'Phase 1' Proposal. There are two major changes included in today's proposed rulemaking: 
• Expanding Scope of 'Impacts' or 'Effects.' NEPA requires federal agencies to examine the environmental effects of proposed actions and alternatives and any adverse effects that cannot be avoided if the proposed action is implemented. The proposal would largely restore the definition of 'effects' and 'impacts' that existed prior to the 2020 reforms. More specifically, this would require agencies to assess a broader scope of effects and understand how incremental impacts of how a proposed action can contribute to cumulative environmental problems such as air pollution and climate change, among others. 
• Allowing Federal Agencies to Impose Additional NEPA Requirements. In 2020, CEQ finalized regulatory language that prevented federal agencies from developing guidance that was inconsistent with CEQ's NEPA regulations. The proposal released today would allow agencies to develop procedures and requirements beyond what CEQ requires. CEQ believes this would enable agencies to address their specific programs in environmental reviews and align guidance with their unique mission and circumstances. 
What's Next? CEQ plans to publish the proposed rulemaking in the Federal Register tomorrow. AAAE will be engaging with members through its Environmental Services Committee to determine whether to file comments in response to the proposed rule, which must be provided to CEQ on or before Monday, November 22. CEQ will be hosting two online public meetings for the proposed rule on Tuesday, October 19, at 1-4 pm ET, and Thursday, October 21, at 5-8 pm ET. You can register here. AAAE will continue to be engaged on this critical issue to ensure airports are not experiencing delayed, burdensome, or unwieldy NEPA environmental reviews. 
 
 