Biden administration proposes efficiencies, complications for environmental reviews

Sept. 4, 2023

The White House Council on Environmental Quality (CEQ) has published a proposed rule with a wide range of changes for how federal permitting agencies are to apply the obligations of the National Environmental Policy Act (NEPA), which can affect any project needing federal approvals or using federal funds.

The proposed changes include efficiencies mandated by the Fiscal Responsibility Act of 2023, signed into law in June (OGJ Online, June 2, 2023). The proposal also contains new complications from the Biden administration, notably in the form of provisions to take into account climate change, promotion of renewable energy, extra steps for environmental assessments, and possibly extra research obligations.

Some of the measures mandated by the Fiscal Responsibility Act include mandatory time and page limits for NEPA documents, joint NEPA documents and decision-making by agencies, and adoption of other agencies’ categorical exclusions, which exclude categories of projects from the need for very lengthy, often multiyear analyses.

CEQ also wants to allow agencies to create categorical exclusions through a land-use plan, a mechanism that would come with its own planning or programmatic analyses and decisions.

The proposed rule was published in the July 31 Federal Register. Public comments are due no later than Sept. 29.

Research obligations

The proposed rule could change longstanding policies. It has been understood for decades that an agency must base its analyses on the best available scientific information, which has commonly meant existing information. There might be no end to an agency’s analytical work in support of a decision if it could be required to launch new research to satisfy a challenge to a permitting decision.

The Trump administration tried to codify that policy in its 2020 NEPA guidance, but the Biden administration proposes to eliminate that statement.

“CEQ proposes to strike the statement that agencies are not required to undertake new research to inform their analyses,” the proposed rule says.

In announcing its proposed rule, CEQ also emphasized changes to “accelerate the deployment of clean energy.” It has been noted for decades that NEPA is a procedural law to require analytical steps and a careful consideration of alternatives, but it does not determine the outcome of any given decision. The Biden administration argues that the law includes an implicit preference for less environmentally harmful alternatives.

“CEQ is proposing to remove the language that describes NEPA as a purely procedural statute because, while correct, CEQ considers that language to be an inappropriately narrow view of NEPA’s purpose,” the proposed rule says, referring to previous NEPA guidance language.

Litigation opportunities

The mix of elements in the proposed rule drew cautionary warnings Aug. 3 from a team of attorneys at Beveridge & Diamond PC, a law firm with expertise in environmental and energy regulations.

“The proposed revisions continue to emphasize clarity and efficiency and do take steps toward those goals,” the attorneys said in a news alert. “But they simultaneously would add steps to the NEPA process, enable more inconsistency in NEPA implementation amongst various agencies, and expand litigation opportunities by project opponents.”

The alert warned that the proposed rule would add more steps for environmental assessments (EAs), making them more akin to lengthier environmental impact statements (EISs).

“If an agency chooses to publish a draft EA, it would need to invite public comment and consider those comments when preparing a final EA,” the attorneys wrote. “EAs would also need to briefly discuss the purpose and need for, and alternatives to, the proposed action and separately provide an itemized, clearly defined list of requirements to make it easier for the public and agencies to ascertain whether the EA includes the necessary contents.”

The CEQ emphasis on accelerating adoption of “clean energy” also raised questions about favoring one category of energy. The proposed rule says agencies do not need to conduct an EIS for actions that result in exclusively “beneficial” impacts, even if those impacts are otherwise significant.

“However, opinions may differ on what is ‘beneficial’ versus ‘adverse.’ This provision might be utilized to expedite NEPA reviews only for certain types of projects politically favored at any given time,” the attorneys wrote.