On January 30, 2023, Phase 2 of the Biden Administration’s rule making revisions to Nation Environmental Policy Act (NEPA) were sent by the White House Council on Environmental Quality (CEQ) to the Office of Management and Budget (OMB). Once OMB completes its review the proposed rule will be published in the Federal Register for public comment. The proposed rules are expected to be released sometime this spring.
According to the National Law Review, the Phase 2 rules are likely to be more controversial as they are expected to address: consideration of environmental justice, public participation, and efforts to still streamline the process by imposing deadlines.
Biden Administration Rollback of the Trump Administration’s Overhaul to NEPA
The Trump Administration enacted a massive overhaul of the landmark regulation which went into effect on September 14, 2020. The revisions were the first substantive changes to NEPA since the 1970s. The major focus of the overhaul was twofold: 1) to speed up NEPA reviews for most projects; and 2) to reduce the overall scope of impacts considered under NEPA. Here is a quick summary of the changes the Trump administration enacted:
- Cumulative Effects- Consideration of impacts from the proposed action together with other actions were eliminated. One such impact eliminated was consideration of the action as contributing to climate change.
- Eliminated Federal Agency Rulemaking and NEPA Policies- CEQ has the authority to promulgate framework NEPA regulations that all federal agencies must follow. However, many federal agencies enacted their own supplemental rules and adopted NEPA policies govern reviews performed by their Agency.
- Reduced Scope of Significant Effects– The rule eliminated consideration of effects that were remote in time, geographically remove, or the product of a lengthy causal chain.
- New Definition of “Major Federal Action”- Excluded projects that have “minimal federal funding or minimal federal involvement” thereby reducing the number of projects that would trigger NEPA.
- Indirect Effects- Eliminated consideration of ‘indirect effects” which are those caused by the action at a later time or farther removed in distance.
- Purpose and Need- NEPA historically required federal agencies to consider “reasonable alternatives not within the jurisdiction of the lead agency.” The reforms instructed agencies to limit the range of alternatives to only those that were consistent with the applicant’s goals and the agency’s statutory authority.
Biden Administration’s Phase I Rule Revisions
Phase I of the rollback of the Trump Administration’s NEPA reforms went into effect on May 20, 2022. The Phase I rules restored the following: restored the scope of review under “Purpose and Need” to how it was performed historically, reestablished CEQ regulations as the “floor” with the federal agencies able to enact their own regulations, and restored the requirement to consider both indirect and cumulative impacts.
Reducing the Length of NEPA Reviews
The primary objective of the Trump Administration’s overhaul to NEPA was to reduce the timeframes for NEPA reviews. According to a review performed by CEQ, the average time to complete an Environmental Impact Study (EIS) was 4.5 years. A review by CEQ of the average length of an EIS found that most reports were over 600 pages.
While the Biden Administration’s Phase 2 rules are supposed to include revisions to help streamline the NEPA process. However, with the restoration of the scope of review required under NEPA and the possibility additional potential impacts requiring analysis, such as environmental justice, it will be a challenge for the Administration to expedite reviews.
With the Biden’s Administration $1.2 trillion dollar investment in the nation’s infrastructure, NEPA will be front and center on how quickly those improvements to the nations roads, bridges, water infrastructure and grid resilience will occur. How will the Administration be able to balance meaningful NEPA reviews with the equally important goal of implementing much needed improvements to the nation’s infrastructure? All eyes will be on the Phase 2 NEPA rules package when it is released this spring.