More NEPA Changes Announced

On April 20, 2022, CEQ issued the Phase 1 Final Rule, which finalized limited changes to restore regulatory provisions that the 2020 CEQ rulemaking modified or removed. CEQ also indicated that they would issue a future Phase 2 of CEQ rulemaking. On July 28, 2023, this much anticipated release of Phase 2 Notice of Proposed Rulemaking was released. Not surprisingly, proposed Phase 2 rulemaking includes direction specifically related to the recent revisions to the National Environmental Policy Act (NEPA) included with the Fiscal Responsibility Act of 2023. However, more importantly, it also signals a shift in how NEPA is used as a planning tool by including requirements to meet the “spirit of NEPA” as manifested in Section 101 of NEPA.

Although Phase 2 revisions include a plethora of NEPA housekeeping clarifications, the substantive Phase 2 revisions can be encapsulated in two main points:

1) Issue-Based Concise and Efficient Analysis Is Included

• Time limits (2 years for environmental impact statement [EIS]; 1 year for environmental assessment [EA]).
• Page limits (150 pages for EIS [300 pages if complex]; 75 pages for EA).
• Analysis will be limited just to “important issues.
• Allows project sponsors to file claims to enforce time limits.
• Allows more flexibility in the use of categorical exclusions (CEs), including 1) the ability for agencies to use other agencies’ CEs, and 2) allowing agencies to establish CEs through land use plans or other programmatic planning documents.
• Provides additional detail on when to write programmatic NEPA documents and how to tier to those documents to minimize redundancy and increase analysis efficiency.

2) The Section 101 “Spirit of NEPA” Is Front and Center

• Requires use of all practicable means possible to preserve restore or enhance the quality of the human environment, avoid or minimize impacts to the quality of the human environment, avoid or minimize impacts to natural and cultural resources, and address climate-related impacts.
• Requires engagement with Environmental Justice (EJ) communities and consideration of alternatives to address impacts to EJ communities.
• Requires identification of the Environmentally Preferred Alternative in an EIS. The Environmentally Preferred Alternative is defined as the alternative that best promotes national environmental policy expressed in section 101 of NEPA by maximizing environmental benefits, such as addressing climate impacts, disproportionate impacts on EJ communities, and protecting, preserving and enhancing historic, cultural, Tribal, and natural resources.
• Allows for “innovative approaches to NEPA reviews” to address extreme environmental challenges consistent with Section 101 of NEPA. These include sea-level rise, increased wildfire risk, resiliency of infrastructure in the face of climate-change, water scarcity, degraded water or air quality, disproportionate impacts to EJ communities, loss of historic, cultural, or tribal resources, species loss, or impaired ecosystem health.
• Brings back the use of context in determining significance, including consideration of detailed significance criteria that were removed from the 2020 CEQ regulations. These are unique characteristics of geographic areas, uncertain or unknown impacts, resources listed in or eligible for the National Register, and federally listed species.
• Includes guidance for what constitutes a “disproportionate and adverse effect” on EJ communities.
• Adds disproportionate or adverse effects on EJ communities and adverse effects on the rights of Tribal Nations as new criteria for significant impacts.
• Specifically states that Indigenous Knowledge constitutes special expertise for consideration of cooperating and lead agencies.

SWCA Can Help

To review the notice of proposed rulemaking or for details about participating in upcoming public meetings, please visit https://ceq.doe.gov/laws-regulations/regulations.html

Please reach out if you have further questions.