Clean Water Current

(July 22, 2020) – The Council on Environmental Quality (CEQ) last week finalized a set of sweeping changes to the rules governing how environmental reviews of proposed Federal actions are conducted under the National Environmental Policy Act (NEPA). According to CEQ, “the modernized regulations will promote more efficient, effective, and timely environmental reviews by all Federal agencies.”

The final regulations, which were informed by over 1.1 million public comments and closely track with the administration’s January proposal, comprehensively revise the NEPA process.  Among other things, the final rule:

• Establishes presumptive time limits of two years for the preparation of environmental impact statements (EISs) and one year for the preparation of environmental assessments (EAs);
• Requires a single EIS and record of decision (ROD) where appropriate for EISs involving multiple Federal agencies;
• Limits agencies to considering a “reasonable number” of alternatives;
• Allows applicants to assume a greater role in preparing EISs;
• Promotes early interagency and Tribal coordination during permitting actions;
• Precludes consideration of effects that are not reasonably foreseeable or do not have a reasonably close causal relationship to the proposed action;
• Generally precludes consideration of effects that “are remote in time, geographically remote, or the product of a lengthy causal change,” or that “the agency has no ability to prevent due to its limited statutory authority or would occur regardless of the proposed action;”
• Excludes activities with minimal Federal funding or involvement from the definition of “major federal actions” subject to NEPA review;
• Clarifies that mitigation must have a nexus to the effects of the proposed action.

In response to concerns raised during the public comment period, including from NACWA, that agencies will no longer consider impacts related to climate change in light of both the proposed and final rule’s elimination of the requirement to consider “cumulative” impacts, the preamble states that “the rule does not preclude considerations of the impacts of a proposed action on any particular aspect of the human environment.” CEQ further notes that “under the final rule, agencies will consider predictable trends in the area in the baseline analysis of the affected environment,” which can include trends determined to be a consequence of climate change. 

The rule provides federal agencies with one year from its effective date to update their own NEPA procedures consistent with the new requirements. Interestingly, however, while the effective date for the new rule is listed as Sept. 14, CEQ also notes that “this is a major rule subject to congressional review…if congressional review changes the effective date, CEQ will publish a document in the Federal Register to establish the actual effective date or to terminate the rule.” Though unclear, this language appears to be a reference to the potential for a new incoming Congress to overturn the rule under the Congressional Review Act in light of its controversial nature. Court challenges to the new rule are also a virtual certainty. 

For questions concerning the final rule or to share any comments/reactions to the rule, please contact NACWA’s Chief Legal Counsel, Amanda Aspatore.