8 Things You Need to Know About the NEPA Modernization Rule
August 4, 2020
by Linda Erdmann
Senior Project Manager, Environmental Division
The Council on Environmental Quality (CEQ) published a final rule on July 16, 2020, to “Update its Regulations Implementing the Procedural Provisions of the National Environmental Policy Act (NEPA).” Scheduled to go into effect on September 14, 2020, this update marks the first time since 1978 that CEQ has comprehensively updated its NEPA regulations.
The final rule aims to modernize and clarify the CEQ regulations to facilitate more efficient, effective, predictable and timely NEPA reviews for the development of major infrastructure projects.
The final rule includes the following key differences from traditional NEPA guidance.
1. Imposes restrictions on time and page length
Both Environmental Assessments (EAs) and Environmental Impact Statement (EISs) are subject to limits for preparation time and overall document length.
- EAs must be prepared in a year or less, measured from the date of decision to prepare the EA through the date of EA publication or the Finding of No Significant Impact (FONSI). The final page count is limited to 75.
- EISs are limited to two years from the issuance of the Notice of Intent (NOI) to the Record of Decision (ROD). They must fall between 150 to 300 pages, depending on scope and complexity.
Senior agency officials have the ability to modify time and page limits, if needed.
2. Allows applicant-prepared EAs and EISs
Under the new rule, project applicants may prepare both EAs and EISs, though they must sign a statement disclosing any financial interest in a proposed action. Agencies must still provide:
- Guidance and type of information required
- Oversight for preparation of the EA or EIS
- Independent evaluation prior to approval
- Responsibility for the scope and content.
3. Coordinates with the One Federal Decision policy
The final rule adopts the One Federal Decision policy to improve interagency coordination for NEPA reviews. It also directs the lead agency in a multi-agency review to:
- Prepare a joint schedule
- Develop procedures to address delays or disputes
- Prepare a single EA or EIS, when practicable
4. Expands use of tiering by agencies
Agencies are encouraged to “tier” from existing federal, state, tribal and local environmental analyses, studies and decisions for coverage of general matters in a broad analysis by reference. The tiering provision allows for:
- Expanded use of tiering to include EAs
- An agency to adopt another agency’s EIS and EA
- An agency to adopt another agency’s determination that a Categorical Exclusion (CE) applies to the proposed action (as long as the actions are substantially the same).
5. Requires more specificity in public comments
Public comments under the final rule will change in two main ways. First, NOIs must request comments on alternatives and their impacts.
Secondly, the level of specificity in public comments must:
- Provide as much detail as necessary to inform an agency of a commenter’s position
- Explain why issues raised are significant to the consideration of potential impacts
- Reference the corresponding section or page number of the draft EIS
- Propose specific changes to those parts of the EIS
- Include or describe the date sources and methodologies supporting proposed changes.
6. Eliminates independent cumulative impacts analysis
Cumulative impacts are no longer an independent category of impacts that agencies must analyze. Instead, such impacts may be addressed as part of the affected environment discussion.
This provision directs agencies to describe the environment of the area(s) to be affected and include “the reasonably foreseeable environmental trends and planned actions of the area(s).”
7. Revises analysis for significant effects
The new rule eliminates references to “direct,” “indirect” and “cumulative” effects and requires agencies to analyze “the potentially affected environment and degree of the effects of the action.” With this change, agencies must now consider:
- Short-and long-term effects
- Beneficial and adverse effects
- Effects on public health and safety
- Effects that may violate any federal, state, tribal or local environment protection laws.
8. Focuses on causes vs. types of effects
Effects, under the new rule, are defined as “reasonably foreseeable” proposed actions or alternatives that may cause changes to the human environment and have a “reasonably close” causal relationship to the proposed action or alternatives.
The new rule specifies effects that should not be considered, including those that are:
- Remote in time
- Geographically remote
- Brought about by a lengthy causal chain
- Something an agency can’t prevent or that would occur regardless of a proposed action.
It also specifies that “but for” causation (i.e., but for action a, result b would not have happened) is now considered insufficient.
Next Steps for NEPA Modernization
Federal agencies have no more than one year following September 14, 2020, to develop or revise proposed procedures to implement the new regulations. The rule has generated substantial controversy and legal challenges are likely to follow.
POWER’s NEPA practitioners will be closely following this rule and its impact to energy infrastructure projects in the U.S.
About the Author:
Linda has more than 24 years of experience in environmental consulting and project management for private industry, federal and municipal agencies and non-governmental organizations. With an interdisciplinary background in natural resource management, she has skillfully addressed multiple land use and management issues. Linda has experience in all phases of project management with a focused expertise in NEPA, CWA, ESA and other environmental regulations. She is experienced at coordinating complex projects with government agencies and organizations, facilitating meetings and communicating scientific concepts to technical and non-technical audiences. Questions for Linda? Send her an email at firstname.lastname@example.org.