White House Proposes Significant Changes to NEPA Review Process
The White House's Council on Environmental Quality (CEQ) released a proposed rule that would significantly rewrite the regulations that govern National Environmental Policy Act (NEPA) reviews. According to a White House press release, the goal of the proposal is to accelerate infrastructure project reviews, especially for clean energy projects, while promoting public input and advancing the administration's environmental justice and climate initiatives. 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.
The 236-page notice of proposed rulemaking (NPRM), which can be viewed here, will be published in the Federal Register on Monday morning, starting a 60-day comment period. The deadline for submitting comments will be Friday, September 29. An initial review of the NPRM by AAAE indicates that the administration made a concerted effort, as expected, to ensure that climate change and environmental justice concerns are considered during the NEPA review process. AAAE will be engaging with members through its Environmental Services Committee to develop comments in response to the proposed rule.
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. While developing this rulemaking, Congress passed a series of NEPA-related reforms through the FRA during debt ceiling negotiations last month. This proposal 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.
Proposed Rule Highlights. Neither CEQ nor the White House have released a fact sheet or other summary of all the proposed changes and implications that would result from the proposal. Based on our initial review, CEQ is proposing a significant number of changes to NEPA regulations. A redlined version of CEQ's NEPA regulations released today, available here, demonstrates the wide breadth of the changes.
An initial review of CEQ's NPRM indicates that the administration is proposing the following notable changes to the NEPA review process:
• Enabling agencies to apply another agency's categorical exclusion (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;
• Allowing agencies to pursue innovative approaches to NEPA implementation when addressing extreme environmental challenges;
• 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 (a) any reasonably foreseeable climate change-related effects, including the effects of climate change on the proposed action and alternatives; and (b) the potential for disproportionate and adverse human health and environmental effects on communities with environmental justice concerns;
• Requiring and promoting agency engagement with communities with environmental justice concerns as part of the public engagement process;
• Increasing transparency by encouraging publication of an agency determination where the agency determines to apply a CE when an extraordinary circumstance exists and requiring notice and public comment when an agency establishes a CE through a programmatic review;
• Clarifying that an agency must invite public comment on a draft EA if the agency publishes the document; and
• 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.
One of the major themes from the proposed changes is an effort to ensure that federal agencies, including the Department of Transportation (DOT) and its operating administrations, consider climate change and environmental justice concerns during the NEPA review process.
Virtual CEQ Public Meetings. As part of the rulemaking process, CEQ will hold four virtual public meetings to provide a brief overview of the proposed rule and allow members of the public to provide verbal comments. Registration is required to attend the virtual session. To provide verbal comments during a session, members of the public must request a speaker slot at the time of registration. You can register to attend one of the public meetings here. The schedule is as follows:
• Public Meeting #1: Saturday, August 26, 2023, from 1 p.m. to 4 p.m. EDT
• Public Meeting #2: Wednesday, August 30, 2023, from 5 p.m. to 8 p.m. EDT
• Public Meeting #3: Monday, September 11, 2023, from 1 p.m. to 4 p.m. EDT
• Public Meeting #4: Thursday, September 21, 2023, from 2 p.m. to 5 p.m. EDT
What's Next? AAAE will be engaging with members through its Environmental Services Committee to develop comments in response to the proposed rule, which must be submitted to CEQ on or before September 29, 2023. This will include circulating a survey for members to offer their input and perspectives and hosting a conference call with members to discuss the proposed rule. If you would like to get involved or provide feedback, please contact Justin Barkowski at justin.barkowski@aaae.org.
Resources on CEQ's NEPA Phase 2 Rulemaking
• CEQ's NEPA Phase 2 NPRM (Pre-Publication Version)
• White House's Press Release on NEPA Phase 2 Rulemaking
• Registration Information for CEQ Public Meetings on NEPA Phase 2 Rulemaking
• CEQ's Regulatory Impact Analysis for NEPA Phase 2 Rulemaking
• CEQ's Special Environmental Assessment for NEPA Phase 2 Rulemaking
