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Deja Vu: CEQ to reset NEPA regulations, and then some | Bracewell LLP


On October 7, 2021, the White House Council on Environmental Quality (“CEQ”) published its notice of proposed regulations for the review of its implementing regulations under the National Environmental Policy Act (“NEPA”). The long-awaited proposal is the first part of a promise of broader changes to come, perhaps reflecting the difficulty of getting a full set of reviews through the inter-agency review process. The proposed regulations are the first phase of a two-phase process to address the NEPA reviews undertaken by CEQ during the Trump administration and finalized in 2020. CEQ is now proposing to reintroduce previously eliminated provisions related to “the purpose and the need ”and to recodify the definitions. for direct, indirect and cumulative effects. In doing so, the CEQ will reinstate the key terms and provisions of the 1978 NEPA regulations. The phase one rule development also clarifies that the CEQ regulations are a floor, not a ceiling, and that agencies are free to decide. develop their own approaches to environmental review. The current administration intends to develop phase two regulations to address the 2020 NEPA reviews more broadly, with a particular focus on integrating the Biden administration’s policies on climate justice. and environmental. The comment period for the proposed Phase I rule begins on October 7, 2021 and will end in 45 days, November 21, 2021.

The Phase I rule restores the traditional definition of purpose and need in 40 CFR § 1502.13. The “purpose and need” is the reason and purpose of the federal action under consideration. The statement of purpose and need in an environmental impact assessment is an important part of NEPA practice because it shapes the range of alternatives to be considered by an agency (and thus limits or broadens the scope of the ‘federal environmental review). The Trump administration expressly characterized an agency review of the purpose and need for action by providing that “[w]hen the legal obligation of an organization is to examine a request for authorization [e.g., a permit], the agency should base the purpose and need on the objectives of the applicant and the authority of the agency. Proponents argued that this addition only codified common sense and case law by saying that a plaintiff’s objective in seeking federal action should inform the objective and necessity of the proposed federal action. However, CEQ proposes to delete this sentence after concluding that “[a]agencies should have the discretion to base the purpose and necessity of their actions on a variety of factors, which include the objectives of the applicant, but not to the exclusion of other factors.

In other words, agencies under the new regulation will be freer to change the purpose and necessity of their action without being unduly constrained by the objectives of an applicant. Indeed, the preamble to the proposed rule states that “the objectives of an applicant themselves could be potentially confusing or unduly narrow or restrictive. “(emphasis added). An expanded purpose and need may lead to an increased number of alternatives (some of which may be unpleasant for an applicant or beyond the agency’s authority to require) .

CEQ also reintroduces the classic 1978 definition of effects. Trump-era NEPA regulations grouped direct, indirect and cumulative effects (or impacts) under the simple term “effects.” The Trump-era definition of effects also indicated that a “none” causal relationship is insufficient to hold an agency responsible for a particular effect under NEPA. By restoring the classic 1978 definitions of “direct effects,” “indirect effects,” and “cumulative effects,” CEQ removes the Trump-era provision that “without” causal relationships are not sufficient to attribute a impact on the agency’s action. The CEQ explains that the “but for” clause is confusing and could limit agencies to consider the full scope of “reasonably foreseeable” impacts.

With respect to reasonable predictability, the CEQ proposes to eliminate Trump-era language that directed agencies not to view effects as significant when effects are “distant in time, geographically distant, or the product of.” a long causal chain ”. By removing this language, the CEQ will allow agencies not only to consider but to treat as important various impacts of climate change and environmental justice, even when these impacts are temporally or geographically distant. All that matters is that these effects are “reasonably foreseeable” – not that they are closely causally related to the proposed federal action. CEQ gave an example, observing that “when considering potential federal action that would allow the extraction of fossil fuels, it is reasonably foreseeable that the fossil fuel will be extracted, transported and ultimately burned to create energy, which causes air pollution which can have adverse effects on public health and the environment. This example can inspire passionate commentary and policy discussion, as it departs significantly from major precedents in certain circumstances. In an important footnote, the CEQ states that federal agencies “may take into account all the tools and resources available to assess [greenhouse gas] emissions ”, including the 2016 CEQ Guidance Document on Assessing Greenhouse Gases and Climate Change in the NEPA Review. The CEQ also notes that preliminary estimates from the Interagency Working Group on the Social Cost of Greenhouse Gases may be useful to federal agencies assessing effects under NEPA.

While Phase I rule making can best be understood as the reintroduction of some rules that most agencies and businesses seeking federal approvals are familiar with, CEQ will also reintroduce some of the uncertainty that is confronted by project promoters when they authorize or defend a project. By excluding some alternatives or effects of agency review, the Trump-era NEPA reviews aimed to better standardize NEPA agency review processes across the executive branch and limit boundaries. externalities of what had to be taken into account by the agencies. The proposed regulations would allow agencies to pursue their own approaches to NEPA compliance by examining a broader purpose and need, considering the longer-term effects of an action, and even developing specific implementing regulations. agency that are more complex or more stringent than CEQ NEPA regulations. Returning to pre-Trump terms, especially in the context of the broader interpretation offered in the new proposal, would remove some of the defenses that would otherwise be available to agencies facing lawsuits alleging failures in reviewing them. alternatives and impact analysis.

As we have noted, this is phase I of a two phase regulation. While we do not now know what the CEQ may offer in its further review of the NEPA implementing regulations, the CEQ has explicitly foreshadowed a leading role for climate change and environmental justice in the NEPA of the future. .