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NEPA Environmental Review Requirements

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Quick Take

The Council of Environmental Quality (CEQ) finalized its “Phase 1” NEPA rule, which revises certain changes made by the 2020 NEPA rules. CEQ will more broadly revisit the 2020 rules with a “Phase 2” proposal. 

Why it Matters

In 1969, Congress enacted the National Environmental Policy Act (NEPA), which requires federal agencies to assess the environmental impacts of certain proposed actions. It can be thought of as a “look before you leap” law. Under NEPA, federal agencies must perform an environmental review for each proposed “major federal action.” Major actions include permit decisions, adoption of agency policy, formal planning, agency projects, and other actions. The environmental review process may involve consultation and collaboration with other expert agencies like EPA, U.S. Fish and Wildlife Service, and Centers for Disease Control and Prevention. NEPA provides transparency by requiring that draft reviews be publicly disclosed and open for public comment. The final environmental reviews can be challenged in court, allowing for accountability.

NEPA does not require agencies to adopt the least environmentally impactful alternatives when finalizing the project design or eventually taking the action. NEPA provides a process for agencies to follow in decision-making, but does not impose a substantive outcome. There are many instances when the NEPA process has positively shaped agency decisions and actions, leading to more intelligent project designs and better outcomes for people and the environment.

Click here for more background information on NEPA.

The Council of Environmental Quality (CEQ), in the Executive Office of the President, issues implementing regulations for NEPA that outline how federal agencies must comply with NEPA. The CEQ NEPA implementing regulations outline a framework but are designed to provide flexibility to each agency. Agencies must then adopt their own NEPA implementing procedures to supplement the CEQ regulations, which are reviewed by CEQ.

During the Obama administration, the CEQ issued new guidance on how agencies should consider greenhouse gas emissions and climate change in NEPA reviews. The Trump administration revoked that guidance and issued replacement draft guidance that diminished its effectiveness. CEQ also completed revisions to CEQ’s implementing regulations for NEPA, the first such revisions since 1978. The final regulations changed key definitions like “major federal action,” “effects,” and “reasonable alternatives.”

Current Status

When President Biden took office on Jan. 20, 2021, he signed an executive order (EO 13990) instructing the CEQ to rescind the Trump-era draft guidance on GHG emissions and review, revise, and update the Obama-era guidance. CEQ rescinded its 2019 draft guidance on Feb. 19, 2021

President Biden’s Jan. 27, 2021 EO 14008 instructs the CEQ and Office of Management and Budget (OMB) to “take steps … to ensure that Federal infrastructure investment reduces climate pollution, and to require that Federal permitting decisions consider the effects of greenhouse gas emissions and climate change.” It also instructs the CEQ and OMB to “identify steps that can be taken, consistent with applicable law, to accelerate the deployment of clean energy and transmission projects in an environmentally stable manner.”

In Apr. 2022, CEQ finalized its “Phase 1” rule, the first of two rules revisiting the 2020 changes. The Phase 1 rule restores language on the purpose and need statements in environmental analyses; consideration of direct and indirect effect as well as cumulative impacts of agency actions; and confirming CEQ’s regulations serve as a floor rather than a ceiling for agency environmental reviews. CEQ plans to “more broadly revisit” the 2020 NEPA regulations in a “Phase 2” rule and requests comments on whether it should provide “more specificity about the manner in which agencies should analyze certain categories of effects” in Phase 2.

Timeline of Events

obama administration
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Trump administration
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March 28, 2017 President Trump signs EO 13783 on Promoting Energy Independence and Economic Growth, which directs CEQ to rescind final guidance issued on Aug. 1, 2016 on the Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in NEPA Reviews.

Aug. 15, 2017 President Trump signs EO13807 that shortens the time for environmental reviews of large federally funded infrastructure projects. This order also revokes President Obama’s EO 13690, which had required federal agencies to consider sea level rise and flood projections when considering agency actions, including federal funding of infrastructure. This order establishes the “One Federal Decision” approach to NEPA reviews for major infrastructure projects, requiring each project to have a single lead agency for the environmental review process. The order instructs CEQ and OMB to develop a framework for this implementing the One Federal Decision and directs CEQ to develop an initial list of actions it plans to take to revise the environmental review process within 30 days. This order also kicks off actions within agencies to review and revise their NEPA process with regard to infrastructure projects.

Sep. 14, 2017 CEQ publishes its initial action list for revising the NEPA process as required by EO 13807.

Feb. 12, 2018 President Trump releases the Legislative Outline for Rebuilding Infrastructure in America. It calls on the CEQ to rewrite its NEPA regulations, which would have a significant impact on all agencies’ NEPA processes. It also proposes designating one lead agency for each NEPA review, rather than the current approach that requires independent review of the action from each relevant agency. This would mean that expert agencies, such as public health and environmental agencies, would not have meaningful input in the environmental review process. The proposal also limits the allowable time for environmental review and decreases the period of time in which a lawsuit may be filed challenging a NEPA review. Finally, the proposal would limit the authority of the Environmental Protection Agency to oppose projects based on expected increases in air pollution.

April 9, 2018 Twelve agencies and councils sign a Memorandum of Understanding Implementing One Federal Decision Under Executive Order 13807 “to establish a cooperative relationship for the timely processing of environmental reviews and authorization decisions for proposed major infrastructure projects”.

June 20, 2018 CEQ issues an Advanced Notice of Proposed Rulemaking to update its NEPA implementing regulations. CEQ solicits comments on 20 broad questions regarding the NEPA process and scope of NEPA review and asks for specific recommendations for changes to the regulations. The comment period closes July 20, 2018.

Feb. 26, 2019 CEQ issues a memo on Executive Order 13807 to provide guidance to state agencies assigned NEPA responsibilities for large transportation infrastructure projects. The memo directs state agencies to mirror the new federal process set out in E.O. 13087 of combining the environmental review and authorization decision for “major infrastructure projects” into “One Federal Decision”. Agencies are supposed to complete the entire “One Federal Decision” process within two years.

June 21, 2019 CEQ releases draft guidance on how federal agencies should consider greenhouse gas emissions under NEPA. If finalized, this guidance would replace the Aug. 1, 2016 guidance released by the Obama Administration and rescinded by the Trump Administration. The guidance directs agencies to “attempt to quantify a proposed action’s projected direct and reasonably foreseeable indirect GHG emissions when the amount of those emissions is substantial enough to warrant quantification, and when it is practicable to quantify them using available data and GHG quantification tools.”  

Jan. 9, 2020 CEQ releases a proposed rule, Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act. CEQ proposes removing the requirement to analyze cumulative impacts and proposes changes to key definitions in NEPA like “major federal action,” “effects,” and “reasonable alternatives.” The proposed changes have the potential to reduce the amount of projects that need to go through environmental review and narrow what is considered during the review process.

Jan. 21, 2020 Nearly 170 members of Congress send a letter to CEQ requesting an extension of the comment deadline.

Feb. 13, 2020 In a lawsuit related to a Freedom of Information Act (FOIA) request for documents, the Southern Environmental Law Center asks the court to block CEQ from closing the proposed rule’s comment period until CEQ provides the organization with the requested documents. Southern Environmental Law Center v. Council on Environmental Quality, No. 3:18-cv-00113-GEC (W.D.Va.).

March 9, 2020 The Western District of Virginia rejects the Southern Environmental Law Center’s request to stop CEQ from closing the comment period for its proposed changes to NEPA regulations. Southern Environmental Law Center v. Council on Environmental Quality, No. 3:18-cv-00113-GEC (W.D.Va.). 

July 16, 2020 CEQ issues its final NEPA regulations. This is the first time these regulations, meant to guide federal agencies on how to implement NEPA, have been comprehensively revised since they were adopted in 1978. The final regulations change key definitions like “major federal action,” “effects,” and “reasonable alternatives” to exclude projects from review under NEPA and to reduce the number and type of effects and alternatives considered during review. The regulations also raise the bar for comments on NEPA documents by requiring more detailed analysis and information from commenters.

July 29, 2020 A coalition of 17 environmental groups files a lawsuit in the Western District of Virginia challenging the final NEPA regulations. Wild Virginia v. Council on Envtl. Quality, No. 3:20-cv-00045 (W.D. Va.). That same day, separate coalition of 20 environmental justice, outdoor recreation and conservation groups file a lawsuit challenging the final NEPA regulations in the Northern District of California. Alaska Community Action on Toxics v. Council on Envtl. Quality, No. 3:20-cv-05199 (N.D. Cal.).

Aug. 6, 2020 A coalition of environmental justice groups files a lawsuit against CEQ challenging the final NEPA regulations. Envtl. Just. Health All. v. Council on Envtl. Quality, No. 20-cv-6143 (S.D.N.Y.).

Aug. 25, 2020 The US Chamber of Commerce, the American Petroleum Institute and seven other groups seek to intervene in the lawsuit against CEQ to support the government and defend the new regulations. Wild Virginia v. Council on Envtl. Quality, No. 3:20-cv-00045 (W.D. Va.).

Aug. 28, 2020 A coalition of 21 states, the District of Columbia and Guam file a lawsuit against CEQ challenging the final NEPA regulations. California v. CEQ, No. 3:20-cv-06057 (N.D. Cal.).

Sep. 23, 2020 A group of organizations file a challenge against the 2020 NEPA regulations for “exempt[ing] federal funding of concentrated animal feeding operations and slaughterhouses” from NEPA review. Iowa Citizens for Cmty. Improvement v. CEQ, No. 1:20-cv-02715 (D.D.C.).

Nov. 2, 2020 OMB issues a memo to push executive agencies to update their NEPA procedures to conform with CEQ’s new regulations

Biden Administration
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Jan. 20, 2021 President Biden instructs CEQ in EO 13990 to rescind the Trump-era draft NEPA guidance on considering greenhouse gas emissions and to review and to consider updating the final guidance issued in 2016

Jan. 27, 2021 President Biden signs EO 14008 that instructs the CEQ and OMB to “take steps … to ensure that Federal infrastructure investment reduces climate pollution, and to require that Federal permitting decisions consider the effects of greenhouse gas emissions and climate change.” It also instructs the CEQ and OMB to “identify steps that can be taken, consistent with applicable law, to accelerate the deployment of clean energy and transmission projects in an environmentally stable manner.” These directives may lead the CEQ to review and revise the recently finalized NEPA implementing regulations.

Feb. 9, 2021 The District of DC granted a stay in the case before it challenging the 2020 rule. Iowa Citizens for Cmty. Improvement v. CEQ, No. 1:20-cv-02715 (D.D.C.).

Feb. 12, 2021 The Northern District of California grants stays to the two cases challenging the CEQ regulations. Alaska Community Action on Toxics v. Council on Envtl. Quality, No. 3:20-cv-05199 (N.D. Cal.); California v. CEQ, No. 3:20-cv-06057 (N.D. Cal.).

Feb. 16, 2021 The Southern District of New York stays the case pending at the request of all parties. Envtl. Just. Health All. v. Council on Envtl. Quality, No. 20-cv-6143 (S.D.N.Y.).

Feb. 19, 2021 CEQ publishes a notice rescinding its June 2019 draft guidance on considering GHGs in environmental reviews.

Feb. 19, 2021 The US District Court for the Western District of Virginia denies the government’s request for a 60-day freeze in litigation and sets a hearing date of Apr. 21, 2021 to consider the environmental plaintiffs’ motion for summary judgment. Wild Virginia v. Council on Envtl. Quality, No. 3:20-cv-00045 (W.D. Va.).

March 17, 2021 CEQ asks the court to remand but not vacate the 2020 NEPA implementing regulations because CEQ is reconsidering the rule. Wild Virginia v. CEQ, No. 3:20-cv-00045 (W.D. Va.).

June 21, 2021 The US District Court for the Western District of Virginia dismisses the case challenging the 2020 revised NEPA regulations. The judge finds the claims nonjusticiable and the court without jurisdiction because the plaintiffs do not have standing and, even if they did, the claim is not yet ripe. Wild Virginia v. CEQ, No. 3:20-cv-00045 (W.D. Va.).

June 29, 2021 CEQ extends the deadline for agencies to propose revisions to their NEPA procedures in line with the Trump-era revisions to CEQ’s NEPA regulations by two years, allowing time for CEQ to reconsider the 2020 changes

July 30, 2021 Plaintiffs file an appeal of the Western District of Virginia’s dismissal of their case challenging the CEQ’s process by which they made changes to their NEPA regulations in 2020. Wild Virginia v. Council on Environmental Quality, Docket No. 21-01839 (4th Cir.)

Aug. 2021 The Northern District of California and the District of D.C. extend the stay of the cases challenging the 2020 rule. Alaska Community Action on Toxics v. Council on Envtl. Quality, No. 3:20-cv-05199 (N.D. Cal.); California v. CEQ, No. 3:20-cv-06057 (N.D. Cal.); Iowa Citizens for Cmty. Improvement v. CEQ, No. 1:20-cv-02715 (D.D.C.).

Oct. 6, 2021 The Council on Environmental Quality (CEQ) announces its “Phase 1” rule revisiting the Trump-era revisions to the NEPA implementing regulations finalized in 2020. The proposal would restore the 1978 regulatory language in three provisions. CEQ eliminates the changes made to the provision on agency descriptions of the purpose and need of their actions in their environmental statements, expressing concern that the 2020 changes incorrectly required an agency to restrict its purpose and need discussion to the goals of the applicant in a manner that would limit consideration of the public interest and reasonable alternatives. Second, CEQ proposes revising the rule to clarify that agencies have discretion to go beyond requirements set by CEQ, positioning CEQ’s NEPA rules as a minimum regulatory standard rather than a ceiling. Third, the proposal restores the definitions of direct and indirect effects and cumulative impacts, and removes other language that could narrow the scope of NEPA analysis. CEQ says in its proposed rule that it will “more broadly revisit” the 2020 NEPA regulations in a “Phase 2” rule. CEQ requests comments on whether it should provide “more specificity about the manner in which agencies should analyze certain categories of effects” in its Phase 2 rule.

Oct. 29-Nov. 17, 2021 The Northern District of California, the Southern District of New York and the District Court for the District of D.C. further extend the stays of the cases challenging the 2020 rules. California v. CEQ, No. 3:20-cv-06057 (N.D. Cal.); Iowa Citizens for Cmty. Improvement v. CEQ, No. 1:20-cv-02715 (D.D.C.); Envtl. Just. Health All. v. Council on Envtl. Quality, No. 20-cv-6143 (S.D.N.Y.).

Nov. 22, 2021 Nineteen states and territories send a letter to CEQ urging the agency to repeal the remaining parts of the 2020 Rule.

Jan. 18, 2022 CEQ urges the Fourth Circuit to dismiss plaintiffs’ appeal for lack of standing. Wild Virginia v. Council on Environmental Quality, Docket No. 21-01839 (4th Cir). 

Feb. 3, 2022 Environmental groups write a letter to CEQ asking the agency to issue guidance or regulations stopping federal land management agencies from using “condition-based management,”  a practice which allows agencies to skip required site-specific NEPA analysis.

Apr. 20, 2022 CEQ issues a rule finalizing its Phase 1 revisions to NEPA implementing provisions. In line with its Oct. 2021 proposal, the rule restores the 1978 regulations in several places. CEQ also indicates that it will release a Phase 2 proposal later this year that makes more revisions to the 2020 rule.

May 11, 2022 CEQ Chair Brenda Mallory testifies in front of the Senate Environment and Public Works Committee. Among other things, the Committee asks Chair Mallory about changes to the NEPA implementing regulations.

July 13, 2022 Sen. Dan Sullivan (R-Ak), with 48 co-sponsors, introduces S.J. Res. 55, to disapprove of CEQ’s National Environmental Policy Act Implementing Regulations Revisions. To pass, the Congressional Review Act would need either the support of the President or two-thirds support in both chambers of Congress. 

July 19, 2022 Republican members of the House of Representatives meet to discuss their “Let America Build” initiative designed to limit the scope of environmental reviews and curtail the right to litigate over NEPA compliance.

Oct. 26, 2022 The Fourth Circuit hears oral arguments in Wild Virginia v. Council on Environmental Quality. Docket No. 21-01839 (4th Cir.).

NEPA Actions by Agency

Click the links below for agency-specific NEPA updates: