Eric R. Johnson, CHMM, AICP | Senior Environmental Project Manager
NV5 – Albuquerque, NM
The National Environmental Policy Act (NEPA) regulations have not been revised for decades, but this changed in 2020. On July 16, 2020, the Council on Environmental Quality (CEQ) issued final rules revising the NEPA regulations. The NEPA regulations are relatively simple and take up only nine sections of the Code of Federal Regulations (CFR) from 40 CFR 1500 to 40 CFR 1508. The last major NEPA regulation revision was in 1978, and the requirement for “worst case” analysis was eliminated in 1986. Instead of regulatory revisions, the CEQ issued 30 guidance documents on topics ranging from environmental justice to cumulative impacts. Since the previous administration issued the final rule, the current administration may make additional rule changes. Certain revised sections will also likely be challenged in court.
There has been concern about the amount of time and paperwork required for NEPA compliance, especially at the Environmental Impact Statement (EIS) level. The EIS process took an average of 4.5 years per EIS from issuing a Notice of Intent (NOI) to obtain a Record of Decision (ROD). Final EIS documents averaged 662 pages in length. The 2020 rule revision aims to reduce the time and length of NEPA documents. The final rule recognizes the role of environmental assessments (EA) and categorical exclusions (CEs) in making the NEPA process more efficient. Based on CEQ estimates, CEs provide NEPA clearance for approximately 100,000 Federal actions annually, and EAs provide clearance for approximately 10,000 federal actions annually.
Some changes are minor or organizational. The word “insure” was replaced with “ensure.” The CEQ replaced the words “circulate” and “circulation” with “publish” and “publication.” The rule eliminates obsolete references to things that no longer exist, such as the Office of Management and Budget Circular A-95 and state and area-wide clearinghouses. To recognize the important role of Native American governments in the NEPA process, the rules add the word “Tribal” to the phrase “State and local governments.”
Section 40 CFR 1501.1 was changed from “Purpose” to “NEPA thresholds.” The section guides an agency on determining whether a proposed action is subject to or exempt from NEPA. The following new sections were added: CE at 40 CFR 1501.4, EAs at 40 CFR 1501.5, and Finding of No Significant Impact (FONSI) at 40 CFR 1501.6.
Alternatives are no longer referred to as the “heart of the EIS.” Section 1502.14 states: “The alternatives section should present the environmental impacts of the proposed action and the alternatives in a comparative form.” Lead agencies no longer are required to consider reasonable alternatives not within their jurisdiction. The no-action alternative remains. Nevertheless, lead agencies can consider alternatives outside their jurisdiction to address legislative EIS requirements and congressional directives.
The revised rule exempts certain actions from full NEPA review when the President declares an emergency or disaster area. The CEQ provides alternative arrangements for NEPA compliance during emergencies.
To limit page length, the rule sets a 75-page limit for EAs, but senior agency officials may approve longer page limits. The EIS page limit is 150 pages for most proposals and 300 pages for proposals of unusual scope or complexity. A page means 500 words and does not include maps, diagrams, graphs, tables, or other graphics. CEs do not have specific document length requirements. The EA time limit will be one year, and the EIS time limit will be two years. A senior agency official can approve longer periods. The lead agency will develop a schedule and set milestones for the NEPA process. Public comments are being shifted earlier in the process. An agency can seek comments earlier in the scoping, even before issuance of a NOI. Section 40 CFR 1501.9 states: “Scoping may include pre-application procedures or work conducted prior to publication of the notice of intent.”
The rule recognizes that NEPA documents are mostly transmitted electronically. EISs will have a 1-page cover rather than a cover sheet. EISs no longer need to include a list of agencies, organizations, and persons who received the EIS since EISs are published online. In addition, EISs no longer need to include an index since electronic documents are searchable. However, agencies must consider internet access of interested and affected parties in rural locations or economically distressed areas. Other methods, such as printed documents, will be provided in areas where internet access is poor. The rule requires EISs to include the estimated total costs to prepare the draft and final EIS, including agency staff, consultant, and direct costs.
Perhaps, the largest change occurs at the end of the regulations is at 40 CFR 1508 where definitions are provided. Each definition formally had its own section number, such a 1508.5, but the rule consolidates the definitions into a single section, 1508.1. The terms direct, in-direct, and cumulative effects are eliminated. The preamble to the final rule comments: “…the terms ‘indirect’ and ‘cumulative’ have been interpreted expansively resulting in excessive documentation about speculative effects and leading to frequent litigation.” NEPA documents should consider “analysis of effects that are reasonably foreseeable and have a reasonably close relationship to the proposed action.” The rule revised the meaning of “Major Federal Action.” The following phrase was deleted: “Major reinforces but does not have a meaning independent of significantly.” The rule preamble states that “major” and “significantly” have independent meanings. In Section 1508.1(q), a list of actions considered or excluded from the definition of major was provided. The term “significantly” was deleted from the definitions.
Mitigation measures must have a nexus to proposed action effects. The measures must be designed specifically to mitigate proposed action effects.
Agencies have one year after the effective date (September 14, 2020) to develop revised agency procedures. For NEPA reviews in process, agencies may proceed with the 1978 regulations or the new 2020 regulations. For NEPA reviews initiated after September 14, 2020, agencies should use the 2020 regulations unless there is a “clear and fundamental conflict.”
There will be surprises as agencies start implementing the new NEPA rule. Variation between federal agencies should be expected. The courts have always had a large role in NEPA, and court decisions will affect the new rule.