Navigating the New NEPA Regulations – What you Need to Know

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By: Andrew Der, CEP

On July 1, 2024, the White House Council on Environmental Quality (CEQ), an executive branch regulatory agency, began the implementation of their second phase rules for the National Environmental Policy Act (NEPA). These rules are the culmination of revisions that have been ongoing since 2021 and may have significant effects on any future NEPA work performed.

For those who may be unfamiliar, NEPA is a comprehensive environmental policy requiring federal agencies – or nonfederal entities receiving federal funding – to consider the environmental implications of their actions. It serves as an umbrella law, providing a framework for document impacts, mitigation, and compliance with other federal, state, and local environmental statutory requirements.

The final rules being implemented are widely considered to be overall improvements – restoring elements lost in previous administrations, emphasizing equitable public involvement, and developing a more technically-founded analysis. While the changes are too extensive to fully cover in this article, here are a few of the key revisions:

NEPA Phase II Revision Highlights:

  • Time and Document Limitations: Environmental Assessment (EA) and Environmental Impact Statement (EIS) time and document reporting limitations that were codified in the Fiscal Responsibility Act of 2023
  • Categorical Exclusions (CE): Agencies now have increased flexibility to establish CEs, streamlining the approval process for lesser activities. This includes the ability for one agency to adopt another agency’s existing CE to put in their own Code of Federal Regulations (CFR).
  • Climate Change and Environmental Justice: A greater emphasis has been placed on these issues in the new NEPA documentation, along with increasing effective public participation.
  • Significance Effects: Pre-2020 criteria regarding the determination of significance effects have been reinstated.

These are just a few of the changes to come in Phase II. For more information, head over to the CEQ’s official NEPA Rulemaking page! https://ceq.doe.gov/laws-regulations/regulations.html

NEPA and the Supreme Court

In addition to these new regulations, NEPA could still undergo some more changes as it heads to the Supreme Court in the upcoming case, Seven County Infrastructure Coalition v. Eagle County, Colorado. The dispute revolves around a disagreement between the two parties about the scope of NEPA’s requirements for comprehensive environmental impact assessments. Seven County Infrastructure Coalition in Utah proposed a new infrastructure project intended to improve transportation access in isolated parts of the state. Despite the group gaining approval for the project after a two-year environmental review, Eagle County, Colorado and several environmental groups sued to stop the venture, claiming insufficient environmental impact assessments were conducted, and the broader environmental impacts were not fully assessed as required by NEPA. The outcome of this case has the potential to affect the scope of NEPA analysis, and in turn the environmental assessment (EA) and environmental impact statement (EIS) planning processes.

Read more about Seven County Infrastructure Coalition v. Eagle County, Colorado in this article from Politico! https://www.eenews.net/articles/energy-sector-braces-for-supreme-court-nepa-case-2/

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