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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.Continue Reading The CEQ Tries to “Make a Silk Purse from a Sow’s Ear” by Revising NEPA Regulations

The Council on Environmental Quality, on February 18, 2010, proposed three substantive steps to “modernize and reinvigorate” the National Environmental Policy Act (NEPA). According to Nancy Sutley, the Chair of the White House-based CEQ, these measures “will assist Federal agencies to meet the goals of NEPA, enhance the quality of public involvement in governmental decisions relating to the environment, increase transparency and ease implementation.”

These three steps include when and how Federal agencies must consider greenhouse gas emissions and climate change in their proposed actions; clarifying appropriateness of “Findings of No Significant Impact” and specifying when there is a need to monitor environmental mitigation commitments; and clarifying use of categorical exclusions. The CEQ is requesting public comment on all three of the draft guidances.

The Effects of Climate Change and Greenhouse Gas Emissions Must be Considered in the NEPA Process

Perhaps the most critical element to this modernization of the NEPA process is the CEQ’s draft guidance on when and how Federal agencies must consider greenhouse gas emissions and climate change in their proposed actions. According to the CEQ:Continue Reading CEQ’s Steps to Modernize and Reinvigorate NEPA Includes Reporting on Climate Change Effects of Federal Actions