The Biden administration released a proposed rule last week to finish undoing changes the previous administration made to the National Environmental Policy Act (NEPA) and to align it with recent changes approved by Congress.
According to the White House Council on Environmental Quality (CEQ), the so-called “Bipartisan Permitting Reform Implementation Rule” will “modernize and accelerate environmental reviews under NEPA, encourage early community engagement, accelerate America’s clean energy future, strengthen energy security, and advance environmental justice.”
The proposal comes a year after CEQ finalized regulations to undo part of the 2020 NEPA reforms instituted under the Trump administration that exempted classes of federal actions from NEPA review and restricted the types of project effects to be examined during the NEPA review process. And they come a few months after Congress approved, and President Biden signed into law, changes to NEPA as part of the deal to avoid a government default. Those changes, which included limiting Environmental Impact Statements (EIS) to 150 pages and Environmental Assessments (EA) to 75 pages, are reflected in the new proposed rule.
Among other changes to NEPA, the proposed rule would:
- clarify that projects that only have significant, long-lasting positive impacts do not require environmental impact statements and encourage the use of programmatic environmental reviews that cover multiple projects or categories of projects
- clarify that federal agencies can establish joint categorical exclusions
- encourage agencies to consider climate change effects in environmental reviews and identify reasonable alternatives to mitigate climate impacts
- direct agencies to consider environmental justice in environmental reviews and—for the first time—encourage agencies to incorporate measures to avoid or reduce disproportionate effects on communities, including the cumulative effects of pollution.
The rule also restores provisions removed in 2020 and adds new provisions to ensure that the impacts of proposed projects on historic and cultural resources are considered. For example, the proposed rule would add to the factors agencies need to consider when determining the appropriate level of NEPA review “the degree to which the proposed action may adversely affect unique characteristics of the geographic area such as historic or cultural resources, Tribal sacred sites, parkland, and various types of ecologically sensitive areas.” In addition, the proposed rule would remove language from the 2020 reforms that could have limited agencies from gathering more update information to analyze the effects of proposed actions, noting that “in the context of analyzing historical, cultural, or biological effects, survey work is often revisited and reassessed periodically, and an agency should not be required to rely on outdated data.”
The proposed rule is open for public comment through Friday, September 29, 2023. In addition, CEQ is holding virtual public meetings on the proposal on Saturday, August 26; Wednesday, August 30; Monday, September 11; and Thursday, September 21. Information about joining these public meetings will be available at www.nepa.gov.
The ACRA Government Relations Committee is reviewing the proposed rules. If you have comments you would like to share with the Committee to inform ACRA’s comments back to CEQ, please send them to amanda@acra-crm.org.