ACRA has provided comments to the White House Council on Environmental Quality (CEQ) on its proposed National Environmental Policy Act (NEPA) rule, supporting numerous provisions but also urging CEQ to clarify some issues to ensure more opportunities for public input.
CEQ released the proposed rule last August to finish undoing changes the previous administration made to the National Environmental Policy Act (NEPA) and align it with recent changes approved by Congress. According to 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.
ACRA praised CEQ for, among other things, restoring language that aligns with the historic intent of NEPA to “preserve historic, cultural, and natural resources,” and proposing language that adds as a factor to for agencies to consider when determining the 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.”
At the same time, ACRA expressed concern that CEQ’s proposal to assign determination of the level of NEPA review to the federal agency “implies that the agency makes such a decision prior to any public input. For instance, an agency may decide that an action is not subject to NEPA.”
In addition, ACRA said it is concerned that the proposed rule may enable federal agencies to use categorical exclusions (CE) as a way around preparing EAs or EISs. ACRA recommended that CEQ develop processes to ensure robust public disclosure and input.