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January 2020

Vol. 25, No.03 Week of January 19, 2020

CEQ issues proposed rule to modernize NEPA regulations

Kristen Nelson

Petroleum News

The Council on Environmental Quality has released a notice of proposed rulemaking to update its National Environmental Policy Act regulations. Public comments are being accepted through March 10.

NEPA was signed into law in 1970 and CEQ’s NEPA regulations were promulgated in 1978 and have not, CEQ said, been comprehensively updated since then.

NEPA compliance has become increasingly complex and time consuming for agencies and applicants, the council said, with the average length of an environmental impact statement more than 600 pages and the average time for federal agencies to complete these reviews four and a half year.

President Trump issued Executive Order 13807 in 2017 establishing a One Federal Decision policy, including a two-year goal for completing environmental reviews for major infrastructure projects, and directing CEQ to consider revisions to its regulations.

CEQ said key elements of the proposed rule include presumptive time limits and page limits, requiring a senior agency person to change, of one year for completion and a 75-page limit for environmental assessments and a two years for completion and a 300-page limit for environmental impact statements.

Clarification of terms and applicability would include, among other changes, threshold consideration of whether NEPA applies to a particular action, stating that analysis of cumulative effects is not required under NEPA and clarification that “reasonable alternatives” must be technically and economically feasible.

The proposed rule would also allow applicants to assume a greater role in preparing EISs under the supervision of an agency.

Three levels of review

NEPA requires detailed statements for “major Federal actions significantly affecting the quality of the human environment,” CEQ said, quoting the statute, and regulations provide federal agencies with three levels of review: categorical exclusions, environmental assessments and environmental impact statements.

Actions that normally do not have significant effects can be reviewed with CEs. Actions that are not likely to have significant effects can be reviewed with EAs, allowing agencies to focus resources on actions likely to have significant effects and require EISs.

The proposed revisions add a section describing the three levels of NEPA review and the basis for deciding which level is appropriate for a proposed action, CEQ said.

Agencies have developed and documented more than 2,000 CEs, CEQ said, estimating that each year federal agencies apply CEs to some 100,000 federal agency actions which typically require little or no documentation. A new section would provide “additional clarity on the process that agencies follow in applying a CE.”

If an agency has not categorically excluded a proposed action, it can prepare an EA and if the EA demonstrates the action’s effects would not be significant, the agency documents its reasoning in a finding of no significant impact, completing the NEPA process. Otherwise, CEQ said, the agency uses the EA to help prepare an EIS, with an estimated 10,000 EA’s prepared by federal agencies each year.

CEQ is proposing a revision “to clarify that an agency must prepare an EA when necessary to determine whether a proposed action would have a significant effect or the significance of the effects is unknown, unless a CE applies to the proposed action or the agency decides to prepare an EIS.”

Environmental impact statements

Federal agencies typically publish some 170 final EISs a year.

CEQ said one of the EIS revisions is the deletion of “all” before “reasonable alternatives,” and said while it provides no guidance on the range of alternatives an agency must consider, its view is “that NEPA’s policy goals are satisfied when an agency analyzes reasonable alternatives, and that an EIS need not include every available alternative.”

The council said, “it is not efficient or reasonable to require agencies to develop detailed analyses relating to alternatives outside the jurisdiction of the lead agency.” Such alternatives, CEQ said, “would not be technically feasible due to the agency’s lack of statutory authority to implement that alternative.”

CEQ said applicants and contractors “would be able to assume a greater role in contributing information and material to the preparation of environmental documents, subject to the supervision of the agency.”

Agencies would, however, “remain responsible for taking reasonable steps to ensure the accuracy of information prepared by applicants and contractors.”

Actions not subject to NEPA

CEQ is proposing to add provisions allowing agencies to identify actions not subject to NEPA, determinations which they may make in their agency NEPA procedures or on an individual project basis.

The threshold applicability analysis would include: whether the proposed action is a major federal action - allowing exclusion of those with minimal federal involvement or funding; whether action in whole or part is a non-discretionary action for which the agency lacks authority to consider environmental effects; whether action for which compliance with NEPA would conflict with requirements of another statute; whether action would be inconsistent with congressional intent due to requirements of another statute; or whether analyses or processes under other statutes serve the agency function of compliance with NEPA.

The council said it is proposing to strike the definition of cumulative impacts and the terms “direct” and “indirect” to focus agency time and resources “on considering whether the effect is caused by the proposed action rather than on categorizing the type of effect.”

CEQ said it is also proposing “to change a position to state that analysis of cumulative effects, as defined in CEQ’s current regulations, is not required under NEPA.” Agencies should, CEQ said, “focus their efforts on analyzing effects that are most likely to be potentially significant and be effects that would occur as a result of the agency’s decision,” with the intent “to focus agencies on analysis of effects that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action.”

The council said it also “proposes to clarify that effects should not be considered significant if they are remote in time, geographically remote, or the result of a lengthy causal chain.”

It is also codifying a finding in the “Public Citizen” case that “effects do not include effects that the agency has no authority to prevent or would happen even without the agency action, because they would not have a sufficiently close causal connection to the proposed action.”

- KRISTEN NELSON






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