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More NEPA Changes Announced

What Happened

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.

Why It Matters

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…

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