On May 20, 2022, the Council on Environmental Quality (“CEQ”) will implement revisions to current regulations governing the environmental analyses under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., (“NEPA”). Specifically, CEQ will revise 40 C.F.R. § 1502.13, restoring detailed “purpose and need statements” in environmental impact statements (“EIS”); 40 C.F.R. § 1507.3, removing language that could be construed to limit local governmental agencies flexibility to develop and revise NEPA procedures to implement local agency specific programs; and 40 C.F.R. § 1508.1, definition of “environmental effects,” to restore the distinction between “direct, indirect and cumulative” effects.

The reason for the proposed changes lies with the dueling political and environmental concepts of the immediate past and current presidential administrations. In 2017, then President Trump issued Executive Order 13807, requiring CEQ to propose certain changes to then existing regulations. In January 2020, CEQ issued the new rules, making wholesale revisions to the original regulations that limit their applicability, and became effective on September 14, 2020. Immediately thereafter, on January 20, 2021, the new Administration issued Executive Order 13990 revoking the previous Administration’s Executive Order, and requiring CEQ to review and revise all regulations implemented between 2017 and 2020, i.e., those issued during the Trump Administration, to become consistent with later Executive Order 13990. The following constitutes the results of CEQ’s efforts toward “rectifying” the limitations on previous regulations, consistent with the intent underlying the original 1978 implementing regulations.

First, CEQ addressed 40 C.F.R. § 1502.13, Purpose and Need.” The newly proposed regulation makes three changes from the 2020 version. Initially, the new revisions amend the first sentence to require an EIS to state the “purpose and need” to which the agency is responding in proposing alternatives, including the proposed action. Second, the proposed rule removes the 2020 rule requiring agencies base the “purpose and need” on the “goals of the applicant.” Finally, the proposed rule deletes reference to “goals of the applicant” from the definition of “reasonable alternatives.” CEQ justifies these changes by asserting that “the goals of the applicant are an important but not determinative factor in developing a purpose and need statement.” NEPA Implementing Regulation Revisions, § III, p. 11/37. In other words, the new rules foreclose the potential for a self-fulfilling prophecy, i.e., constraining the purpose to the applicant’s definition.

Revision to 40 C.F.R. § 1507.3 is principally the removal of the “ceiling provisions” that make CEQ regulations the maximum requirements agencies can include in their NEPA procedures. The purpose is to clarify the CEQ intent that agencies can continue to apply their existing NEPA procedures, potentially going further than CEQ regulations do, so long as agency regulations remain consistent with those of CEQ.

The last revisions are those to the definition of “effects” or “impacts,” in 40 C.F.R. § 1508.1(g). First, the CEQ proposes to redefine the definition of “effects” or “impacts” into the original definition, subdivided into “direct effects,” “indirect effects,” and “cumulative effects.” In addition, the new rules remove the phrase “that are reasonably foreseeable and have a reasonably close causal relationship” to the direct impacts on the project at issue. Third, CEQ proposes to delete in its entirety the 2020 text of section 1508.1(g)(2) which places a fence around the scope of the impacts by requiring a “but for” relationship between the “action” and its effect. Finally, CEQ proposes to restore the concept of “cumulative impacts” which was entirely eliminated from the 2020 version of the rule.

Given the filing of five lawsuits immediately following the publication of the 2020 rule, to which these revisions respond, it will be interesting to witness the response of interest groups on the opposite side of the issue when the 2022 rule is finally published. Be sure and stay tuned for the updated rules and the public reaction.