CEQ Publishes Rule for NEPA Reviews to Consider Broader Scope of Environmental Impacts

April 20, 2022

The White House's Council on Environmental Quality (CEQ) published a final rule April 20 that revises several key provisions of the regulations that govern environmental reviews conducted pursuant to the National Environmental Policy Act (NEPA). The rule requires federal agencies, including the Federal Aviation Administration (FAA), to examine a broader scope of the environmental impacts of a proposed project during a NEPA review. The rulemaking is part of a broader effort of the Biden Administration to roll back certain reforms that were made to the NEPA environmental review process in 2020 and ensure that the federal government is considering the effects of greenhouse gas (GHG) emissions and climate change during federal permitting decisions.&nbsp;

Since NEPA reforms went into effect in 2020, the airport community, like many other industries, has faced uncertainty over the future of the review process. This is expected to continue. CEQ is planning to release a second proposed rulemaking later this year that will propose a broader set of NEPA-related changes. AAAE remains engaged with members and our government partners on these ongoing initiatives to ensure that airports are not experiencing delayed, burdensome, or unwieldy NEPA environmental reviews.

Background on NEPA Reform Efforts. In 2020, 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; clarifying the applicability and scope of NEPA reviews; and making several changes regarding the level of review required by NEPA. However, the Biden Administration has sought to roll back these changes, starting with this “phase 1“ rulemaking to ensure that the effects of GHG emissions and climate challenge are considered during permitting decisions. Later this year, CEQ is expected to release a “phase 2“ rulemaking for public comment that would propose broader changes to the NEPA review process.&nbsp;

Summary of CEQ's “Phase 1“ Rule. CEQ did not make any changes to the proposed rule that was released in October for public comment and as we reported in our October 6 Regulatory Alert.&nbsp;There are two major changes included in today's rule:&nbsp;

• 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 final rule largely restores the definition of “effects“ and “impacts“ that existed prior to the 2020 reforms. This includes requiring 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.&nbsp;

• 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. In the final rule, agencies are now permitted to develop procedures and requirements beyond what CEQ requires. CEQ believes this will enable agencies to address their specific programs in environmental reviews and align guidance with their unique mission and circumstances.&nbsp;

What's Next? CEQ's final rule will go into effect on May 20. AAAE will be working with FAA to determine how the agency plans to update its implementing procedures and guidance in light of the new rule. In addition, AAAE is monitoring additional rulemaking activity from CEQ that will propose broader changes to the NEPA process. AAAE remains engaged on this critical issue to ensure airports are not experiencing delayed, burdensome, or unwieldy NEPA environmental reviews.&nbsp;