The White House announced on January 9 a sweeping change in the requirements for reviewing certain infrastructure projects under the National Environmental Policy Act (NEPA). Heralded as a “modernization” of NEPA, which was enacted in 1970, the proposal would make significant revisions in the process by which projects such as the Atlantic Coast Pipeline (ACP) are reviewed regarding their impact on the environment. The 194-page pre-publication version of the Notice of Proposed Rulemaking (NPR), released by the Council for Environmental Quality (CEQ), states:
“Courts also have issued numerous decisions addressing appropriate implementation and interpretation of NEPA and the CEQ regulations, resulting in a large body of case law. Additionally, Presidential directives have been issued and legislation has been enacted to reduce delays and expedite the implementation of NEPA and the CEQ regulations, including for certain types of infrastructure projects. Notwithstanding the issuance of guidance, Presidential directives, and legislation, implementation of NEPA and the CEQ regulations can be challenging, and the process can be lengthy, costly, and complex. In some cases, the NEPA process and related litigation has slowed or prevented the development of new infrastructure and other projects that required Federal permits or approvals.”
Among the changes being proposed are:
- Establish presumptive time limits for Environmental Assessments (EIS) of 1 year and for Environmental Impact Statements (such as that conducted for the ACP) of 2 years. Senior agency officials would be authorized to approve in writing a longer time period of review when deemed appropriate.
- Page limits: “CEQ proposes to reinforce the page limits for EISs . . . allowing a senior agency official to approve a statement exceeding 300 pages when it is useful to the decision-making process.”
- Limit the range of alternatives to a project that must be considered by the permitting agency.
“It is CEQ’s view that NEPA’s policy goals are satisfied when an agency analyzes reasonable alternatives, and that an EIS need not include every available alternative where the consideration of a spectrum of alternatives allows for the selection of any alternative within that spectrum. The reasonableness of the analysis of alternatives in a final EIS is resolved not by any particular number of alternatives considered, but by the nature of the underlying agency action. The discussion of environmental effects of alternatives need not be exhaustive, but must provide information sufficient to permit a reasoned choice of alternatives for the agency to evaluate available reasonable alternatives.”
The official Notice of Proposed Rule Making is to be published in the Federal Register. CEQ has announced that public comments may be submitted on the proposal within 60 days of its publication in Federal Register. In addition, public hearings will be held in Denver, CO on February 11 and Washington, DC on February 25.
More information and analysis of the proposed NEPA changes will be published in future issues of ABRA Update.