Regulatory Alert: White House Releases NEPA Modernization Final Rule
July 15, 2020
Today the White House's Council on Environmental Quality (CEQ) released a final rule that comprehensively rewrites the National Environmental Policy Act (NEPA) regulations with the goal of accelerating the approval of infrastructure project reviews. The rule, which is the first meaningful update to NEPA regulations in over 40 years, will establish presumptive time limits for the preparation of environmental review documents; improve coordination of NEPA reviews involving multiple agencies; clarify the applicability and scope of NEPA reviews; modernize the process for engaging with the public; and make several changes regarding the level of review required by NEPA. The Federal Aviation Administration (FAA) and other federal agencies will now need to update their NEPA implementation procedures to comply with the new regulations.
CEQ's final rule will be published in the Federal Register tomorrow and go into effect September 14, 2020. President Trump appeared in Atlanta this afternoon to announce the NEPA rewrite.
Background. Today's announcement follows a series of efforts made by the Trump administration to advance its regulatory reform agenda, particularly streamlining environmental reviews. In 2017, President Trump issued an executive order that set a two-year goal for completing environmental reviews and required CEQ to streamline the federal environmental review and authorization process for major infrastructure projects. In 2018, CEQ issued an advance notice of proposed rulemaking (ANPRM) to solicit stakeholder input on how to improve the regulations implementing NEPA. In January 2020, CEQ released its proposal to comprehensively rewrite the NEPA regulations, which generated over 1.1 million total comments from the 60-day public comment period and two public hearings.
AAAE's Advocacy for NEPA Reform. AAAE has been advocating for the administration to adopt a number of airport regulatory reform priorities in the past several years. In 2017, AAAE partnered with ACI-NA and submitted a series of recommendations to the White House which focused, among other things, on NEPA implementation. In 2018 and 2020, AAAE submitted lengthy comments to CEQ in response to the ANPRM and NPRM, offering a series of recommendations to ensure that the NEPA modernization effort met the needs and interests of the airport community. AAAE's comments focused on improving transparency and accountability of agency reviews, enhancing coordination, eliminating unnecessary requirements and actions, making reviews more efficient, ensuring public comments are timely and meaningful, and modernizing the process for engaging with the public on environmental reviews.
Highlights from CEQ's NEPA Modernization. CEQ's final rule includes a significant number of changes to the regulatory framework governing NEPA reviews. Many of the changes adopted were included in the proposed rulemaking that was released in January 2020. Upon taking effect, the final rule will update the NEPA regulations as follows:
What's Next? CEQ's final rule for rewriting the NEPA implementing regulations will go into effect on September 14, 2020, 60 days after publication in the Federal Register. Any long-term impacts from the NEPA modernization effort will likely depend on the outcome of the presidential election and whether any court challenges are brought against the rule. In the meantime, FAA will have to modify its NEPA implementing procedures and guidance to ensure that the agency is in compliance with the CEQ's new NEPA regulations. AAAE will continue its engagement with FAA on this issue to ensure updates in guidance meet the needs of the airport community.
If you have any questions or feedback, please contact Justin Barkowski at justin.barkowski@aaae.org.
Additional Information
Today the White House's Council on Environmental Quality (CEQ) released a final rule that comprehensively rewrites the National Environmental Policy Act (NEPA) regulations with the goal of accelerating the approval of infrastructure project reviews. The rule, which is the first meaningful update to NEPA regulations in over 40 years, will establish presumptive time limits for the preparation of environmental review documents; improve coordination of NEPA reviews involving multiple agencies; clarify the applicability and scope of NEPA reviews; modernize the process for engaging with the public; and make several changes regarding the level of review required by NEPA. The Federal Aviation Administration (FAA) and other federal agencies will now need to update their NEPA implementation procedures to comply with the new regulations.
CEQ's final rule will be published in the Federal Register tomorrow and go into effect September 14, 2020. President Trump appeared in Atlanta this afternoon to announce the NEPA rewrite.
Background. Today's announcement follows a series of efforts made by the Trump administration to advance its regulatory reform agenda, particularly streamlining environmental reviews. In 2017, President Trump issued an executive order that set a two-year goal for completing environmental reviews and required CEQ to streamline the federal environmental review and authorization process for major infrastructure projects. In 2018, CEQ issued an advance notice of proposed rulemaking (ANPRM) to solicit stakeholder input on how to improve the regulations implementing NEPA. In January 2020, CEQ released its proposal to comprehensively rewrite the NEPA regulations, which generated over 1.1 million total comments from the 60-day public comment period and two public hearings.
AAAE's Advocacy for NEPA Reform. AAAE has been advocating for the administration to adopt a number of airport regulatory reform priorities in the past several years. In 2017, AAAE partnered with ACI-NA and submitted a series of recommendations to the White House which focused, among other things, on NEPA implementation. In 2018 and 2020, AAAE submitted lengthy comments to CEQ in response to the ANPRM and NPRM, offering a series of recommendations to ensure that the NEPA modernization effort met the needs and interests of the airport community. AAAE's comments focused on improving transparency and accountability of agency reviews, enhancing coordination, eliminating unnecessary requirements and actions, making reviews more efficient, ensuring public comments are timely and meaningful, and modernizing the process for engaging with the public on environmental reviews.
Highlights from CEQ's NEPA Modernization. CEQ's final rule includes a significant number of changes to the regulatory framework governing NEPA reviews. Many of the changes adopted were included in the proposed rulemaking that was released in January 2020. Upon taking effect, the final rule will update the NEPA regulations as follows:
- Establish presumptive time limits of one year for preparing environmental assessments (EA) and two years for preparing environmental impact statements (EIS) that only a senior agency may extend;
- Establish presumptive page limits of 75 pages for EAs and 150 pages for EISs (or 300 pages for proposals of unusual scope or complexity) that only a senior agency may extend;
- Improves coordination between agencies by requiring joint schedules, a single EIS, and a single record of decision (ROD) for EISs involving multiple agencies;
- Allows contractors to assume a greater role in preparing EISs under agency supervision and with appropriate financial disclosures;
- Provides greater clarity to assist federal agencies in determining whether NEPA applies and the appropriate level of environmental review;
- Clarifies the definition of "major Federal action" and excludes from NEPA review activities with minimal federal funding or involvement;
- Requires agencies to consider environmental effects that are reasonably foreseeable and have a "reasonably close causal relationship" to the proposed action;
- Requires agencies to "certify" consideration of alternatives, information, and analyses submitted by state, tribal, and local governments and public commenters;
- Requires agencies to provide more information to and solicit input from the public earlier in the NEPA review process; and
- Allows the use of modern technologies for information sharing and public outreach.
What's Next? CEQ's final rule for rewriting the NEPA implementing regulations will go into effect on September 14, 2020, 60 days after publication in the Federal Register. Any long-term impacts from the NEPA modernization effort will likely depend on the outcome of the presidential election and whether any court challenges are brought against the rule. In the meantime, FAA will have to modify its NEPA implementing procedures and guidance to ensure that the agency is in compliance with the CEQ's new NEPA regulations. AAAE will continue its engagement with FAA on this issue to ensure updates in guidance meet the needs of the airport community.
If you have any questions or feedback, please contact Justin Barkowski at justin.barkowski@aaae.org.
Additional Information
- CEQ's final rule on updated NEPA implementing regulations (pre-publication version)
- CEQ's Fact Sheet on the NEPA modernization final rule
- AAAE's March 2020 response to CEQ's proposed rule to improve and streamline the regulations governing the NEPA review process
- AAAE's August 2018 recommendations to CEQ for improving the NEPA review process
- AAAE/ACI-NA's airport regulatory reform priorities and proposals
