08/15/2018 - Regulatory Rollback

NEPA Environmental Review Requirements

by Caitlin McCoy, Hana Vizcarra, Laura Bloomer

The Environmental & Energy Law Program is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following. If you’re a reporter and would like to speak with an expert on this rule, please email us.

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. NEPA quickly became part of the bedrock of U.S. environmental law and a guarantee that the government will consider potential consequences and alternatives before it acts.

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 the Environmental Protection Agency, 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. The purpose of NEPA is to ensure the agencies make informed decisions, considering a variety of possible alternatives and the environmental consequences. This process allows agencies to analyze their actions thoroughly and see how they might modify projects to prevent harm to the environment and public health while achieving their goals.

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.

Current Status

During the Trump administration, the White House has revoked guidance issued under the prior administration for how agencies should address greenhouse gases in NEPA evaluations, started a process to revise NEPA’s implementing regulations, and kicked off individual agency reviews of their internal NEPA regulations and processes.

Many agencies have started to review their NEPA processes and have already made changes that affect environmental reviews for projects under their purview. Agencies have even sought to circumvent NEPA entirely. For example, in 2017, the Department of Homeland Security waived NEPA requirements for construction of a 20-mile segment of a border wall and associated infrastructure. The Department of the Interior is furthest along in its review of internal NEPA procedures.

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 August 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.”
  • The draft guidance is open for comment until August 26, 2019 after an extension of the comment period. Comments may be submitted here.  

History

Feb. 18, 2010 The Council on Environmental Quality (CEQ) proposes guidance to agencies for considering greenhouse gas emissions and climate change in NEPA reviews.

December 2014 CEQ updates its proposal for climate change NEPA guidance.

Aug. 1, 2016 CEQ finalizes Guidance on the Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in NEPA Reviews.

Trump Era

March 28, 2017 President Trump signs Executive Order 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 Executive Order 13807 that shortens the time for environmental reviews of large federally funded infrastructure projects. This order also revokes President Obama’s Executive Order 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 published 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. The President’s plan calls on the White House Council on Environmental Quality to rewrite its NEPA regulations, which would have a significant impact on all agencies’ NEPA processes. President Trump’s plan 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. In addition, 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.

July 11, 2018 CEQ extends the comment period through Aug. 20, 2018.

Feb. 6, 2019 CEQ sends the notice of Draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions to the White House Office of Management and Budget for review.

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 August 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.”  Critics argue that this guidance would allow agencies to avoid fully quantifying emissions for specific projects and would not account for the cumulative effects of emissions across projects. It also narrows the use of the Social Cost of Carbon measure in analysis. The draft guidance is open for comment until August 26, 2019 after an extension of the comment period. Comments may be submitted here.  

NEPA Actions by Agency

Click the links below for agency-specific NEPA updates:

 

Thank you to Harvard student Laura Bloomer, JD/MPP 2019, for her assistance with this rule.