The Administration’s decision to direct the Council on Environmental Quality (CEQ) to propose updates to the regulations implementing procedural provisions of the National Environmental Policy Act (NEPA) will have a significant impact on infrastructure projects. CIRT has consistently and actively supported the notion of streamlining regulatory requirements (particularly those associated with EIS rules) as a means to improve efficiencies both as to costs and time it takes to advance projects. Under NEPA Federal agencies are required to evaluate the potential environmental impacts of major projects such as roads and bridges, rail and water infrastructure, energy projects, etc. Yet, CEQ views the regulatory requirements of the law as having become “unnecessarily complex and time consuming,” which has resulted in the delay of some infrastructure projects. The proposal marks the first update to the NEPA law in over 40 years.
The proposed changes will reduce the average time it takes to complete an Environmental Impact Statement (EIS) through increased interagency coordination. Typically, project sponsors must acquire approval from various agencies on permitting decisions to advance their project, which are usually done sequentially – NOT concurrently. As a result, the average environmental impact statement (EIS) process takes 4.5 years, or even longer for highway projects, according to CEQ data. The NEPA changes would codify aspects of Trump’s One Federal Decision policy, which improves coordination and communication between Federal agencies. The policy sets a two-year average goal for completion of environmental reviews for major infrastructure projects. The federal environmental reviews will still be done, administration officials said, but with greater efficiency. The administration announced this will help spur more investment in infrastructure projects.
The CEQ proposal was published in the Federal Register [See, (https://www.regulations.gov/document?D=CEQ-2019-0003-0001)].
Public Comment is open until March 10, 2020. [If your company is interested in submitting comments, you may in accordance with the following: Identify your comment by docket number CEQ-2019-0003, using the following method: Federal eRulemaking Portal: https://www.regulations.gov.]
Summary of Proposals:
CEQ would revise and modernize its NEPA regulations to facilitate more efficient, effective, and timely NEPA reviews by Federal agencies. The proposed updates and clarifications to its regulations are based on CEQ's record evaluating the implementation of its NEPA regulations and on comments provided in response to the ANPRM. The proposed updates and clarifications seek to advance the stated objectives of the current regulations, as adopted in 1978, “[t]o reduce paperwork, to reduce delays, and at the same time to produce better decisions [that] further the national policy to protect and enhance the quality of the human environment.” To that end, the following are the key provisions of the proposal:
- CEQ specifically proposes various revisions to align the regulations with the text of the NEPA statute, including revisions to reflect the procedural nature of section 102(2) of NEPA.
- CEQ also proposes revisions to ensure that environmental documents prepared pursuant to NEPA are concise and serve their purpose of informing decision makers regarding the significant potential environmental effects of proposed major Federal actions and the public of the environmental issues in the pending decision-making process.
- CEQ also proposes revisions to ensure that the regulations reflect changes in technology, increase public participation in the process, and facilitate the use of existing studies, analyses and environmental documents prepared by States, Tribes, and local governments.
- CEQ also proposes revisions to its regulations consistent with the One Federal Decision policy (“OFD policy”) established by E.O. 13807 for multi-agency review and related permitting and other authorization decisions. The E.O. specifically instructed CEQ to take steps to ensure optimal interagency coordination, including through a concurrent, synchronized, timely, and efficient process for environmental reviews and authorization decisions. In response to the ANPRM, CEQ received many suggestions to codify key aspects of the OFD policy in the NEPA regulations, including by providing greater specificity on the roles and responsibilities of lead and cooperating agencies. Commenters also suggested that the regulations require agencies to establish and adhere to timetables for the completion of reviews, another key element of the OFD policy. In response to these comments and to promote interagency coordination and more timely and efficient reviews, CEQ proposes to codify and make generally applicable a number of key elements from expedited procedures and the OFD policy, including development by the lead agency of a joint schedule, procedures to elevate delays or disputes, preparation of a single EIS and joint ROD to the extent practicable, and a two-year goal for completion of environmental reviews. Consistent with section 104 of NEPA (42 U.S.C. 4334), codification of these policies will not limit or affect the authority or legal responsibilities of agencies under other statutory mandates that may be covered by joint schedules, and CEQ proposes language to that effect in § 1500.6.
- CEQ also proposes revisions to clarify the process and documentation required for complying with NEPA by amending part 1501 to add sections on threshold considerations and determining the appropriate level of review; add a section on CEs; and revise sections on EAs, FONSIs, and EISs in part 1502. CEQ further proposes a number of revisions to promote more efficient and timely environmental reviews, including revisions to promote interagency coordination by amending sections of parts 1501, 1506, and 1507 relating to lead, cooperating agencies, timing of agency action, scoping, and agency NEPA procedures. CEQ proposes additional revisions to promote a more efficient and timely NEPA process by amending parts 1501, 1506, and 1507 relating to applying NEPA early in the process, scoping, tiering, adoption, use of current technologies, and avoiding duplication of State, Tribal, and local environmental reviews; revisions to parts 1501 and 1502 to provide for presumptive time and page limits; and revisions to clarify the definitions by amending part 1508.
- CEQ also includes provisions to promote informed decision making and to inform the public about the decision-making process. CEQ seeks amendments to ensure agencies solicit and consider relevant information early in the development of the draft EIS. In particular, CEQ wants to direct agencies in the notice of intent (NOI) to request public comment on potential alternatives and impacts, and identification of any relevant information and analyses concerning impacts affecting the quality of the human environment.
- Additionally, CEQ proposes to direct agencies to include a new section in the draft and final EIS summarizing all alternatives, information, and analyses submitted by the public and to request comment on the completeness of the summary included in the draft EIS. To that end, CEQ further seeks to make revisions to part 1503 to ensure that comments are timely submitted on the draft EIS and on the completeness of the summary of information submitted by the public, and that comments are as specific as possible. Additionally, CEQ proposes a provision in § 1502.18 to require that, based on the summary of the alternatives, information, and analyses section, the decision maker for the lead agency certify that the agency has considered such information. This will advance the purposes of the directive in E.O. 11991 to ensure that EISs are supported by evidence that agencies have made the necessary environmental analyses. See E.O. 11991, § 1 amending E.O. 11514, § 3(h). Upon certification, the proposed provisions in §§ 1500.3 and 1502.18 would establish a conclusive presumption that the agency has considered such information. In conjunction with the certification requirement, this presumption is consistent with the longstanding presumption of regularity that government officials have properly discharged their official duties. See U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001) (“[W]e note that a presumption of regularity attaches to the actions of government agencies.” (citing United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)). This is also consistent with case law upholding regulatory presumptions. See, e.g., Allentown Mack Sales & Serv. v. Nat'l Labor Relations Bd., 522 U.S. 359 (1998); Fed. Commc'ns Comm'n v. Schreiber, 381 U.S. 279 (1965).
- Finally, CEQ proposes changes to make the regulations easier to understand and apply. This includes proposed revisions to simplify and clarify key definitions in § 1508.1. CEQ also proposes certain changes to move and consolidate operative language from the definitions to the relevant regulatory provisions, while leaving the definitional language in the definitions section. In the existing regulations, provisions on certain topics are scattered throughout, making it unnecessarily difficult to navigate the requirements. In some cases, the NEPA regulations address topics in multiple sections and sometimes multiple parts. CEQ proposes to revise the regulations to consolidate provisions and reduce duplication. Such consolidation, reordering, or reorganizing also would promote greater clarity and ease of use.
Most recently, in 2015 Congress enacted Title 41 of the FAST Act (FAST-41), to provide for a more efficient environmental review and permitting process for “covered projects.” See Public Law 114-94, § 41001-41014, 129 Stat. 1312, 1741 (42 U.S.C. 4370m—4370m-12). These are projects that require Federal environmental review under NEPA, are expected to exceed $200 million, and involve the construction of infrastructure for certain energy production, electricity transmission, water resource projects, broadband, pipelines, manufacturing, and other sectors. Id. FAST-41 codified certain roles and responsibilities required by the NEPA regulations. In particular, FAST-41 imports the concepts of lead and cooperating agencies, and the different levels of NEPA analysis—EISs, EAs, and CEs. Consistent with 40 CFR 1501.5(e) through (f), CEQ is required to resolve any dispute over designation of a facilitating or lead agency for a covered project. 42 U.S.C. 4370m-2(a)(6)(B). Section 4370m-4 codified several requirements from the CEQ regulations, including the requirement for concurrent environmental reviews, which is consistent with 40 CFR 1500.2(c), 1501.7(a)(6) and 1502.25(a), and the tools of adoption, incorporation by reference, supplementation, and use of State documents, consistent with 40 CFR 1506.3, 1502.21, 1502.9(c) and 1506.2. Finally, 42 U.S.C. 4370m-4 addresses interagency coordination on key aspects of the NEPA process including scoping (40 CFR 1501.7), identification of the range of reasonable alternatives for study in an EIS (40 CFR 1502.14), and the public comment process (40 CFR part 1503).
To ensure a timely NEPA process so that important infrastructure projects can move forward, Congress has also established shorter statutes of limitations for challenges to certain types of projects. SAFETEA-LU created a 180-day statute of limitations for highway or public transportation capital projects, which MAP-21 later reduced to 150 days. 23 U.S.C. 139(l). The Water Resources Reform and Development Act of 2014 established a three-year statute of limitations for judicial review of any permits, licenses, or other approvals for water resources development project studies. 33 U.S.C. 2348(k). Most recently in FAST-41, Congress established a two-year statute of limitations for covered projects. 42 U.S.C. 4370m-6.