Update to the NEPA Regs - Our Thoughts
Last week we published a link to the Federal Register where the CEQ has posted their proposed rule changes to the National Environmental Policy Act (NEPA). As I suspected, several firms (mostly attorneys) have taken the opportunity to wade through that document to see exactly what those changes are. Why repeat that effort when it's been done so well already I always say, so instead of looking at what the proposed changes are, I want to take a few minutes and look at their potential effect on environmental impact analysis. To keep this post to a manageable length, I'll only focus on a couple of changes at a time, starting with what I think are the two biggest and most important changes. Here goes:
Change 1) Elimination of Cumulative Effects Analysis: CEQ proposes to remove the requirement for separate discussions of “cumulative impacts,” “direct impacts” and “indirect impacts” as part of its change in position that an analysis of cumulative effects is not required under NEPA. Instead, CEQ is directing agencies to focus on “analysis of effects that are reasonably foreseeable and have a reasonably close clausal relationship to the proposed action".
What's the effect on environmental impact analysis? This is a big deal, no question about it. NEPA documents are supposed to differentiate between direct, indirect, and cumulative effects. Some agencies, such as the BLM, go even further and require an analysis of "residual effects", that is, effects that still occur after mitigation is imposed. To be frank, I've seen a multitude of documents where there is no clear delineation of direct and indirect impacts and where cumulative impacts are addressed with the statement "There would be no cumulative impacts" with no underlying rationale. Agencies have been able to get away with this where there is no legal challenge.
In other instances I've seen exhaustive, 100+ page analyses of cumulative impacts. Much of this analysis made me roll my eyes and slowly sink my head into my chin. I think for these projects the agency fears litigation and has taken the approach that "we must analyze everything" to meet the requirement "to take a hard look" so they can avoid a lawsuit. Lawsuits, by the way, are unavoidable (generally speaking) if someone is intent on suing you. Given that the government wins 81% of the time (according to the most recent statistics I've seen), I think this exhaustive level of analysis is overdone. It is these types of projects, that have the potential to result in 5-6 year long, thousand page long EIS, that are the genesis behind this proposed rule making change. It would be far easier, as I said when I was interviewed by KJZZ on January 10th, if the agencies just focused on the issues at hand, did an appropriate level of analysis, and let the chips fall where they may when it comes to a lawsuit, which may be unavoidable. In the end it would save a lot of time. I see this change, in particular, being challenged by NGOs if this rule goes forward.
Change 2) Presumptive Time Limits/Page Limits: CEQ’s proposed regulations would establish a presumptive two-year time limit for completion and 150-page limit (or 300 pages for proposals of “unusual scope or complexity”) for an environmental impact statement, and a one-year time limit and 75-page limit for environmental assessments, not including appendices, unless otherwise approved by a “senior agency official", who must be at the Assistant Secretary level or equivalent.
What's the effect on environmental impact analysis? For Department of the Interior (DOI) agencies, they have been laboring under these requirements since 2017 when Secretary of the Interior Order 3055 came out, so it's not a significant change for them. For other agencies, such as the USDA, DOE, DoD, etc....they'll have to figure out how to implement this, particularly for projects that are in process already... Frankly, this is something that I think sounds good on paper, but won't result in a meaningful change in reality. I already see DOI agencies getting around the page limits through the preparation of exhaustive sets of appendices. So your official page count is 75 pages, but that doesn't include your appendices, which may be 200 pages or more. Remember that 200 pp EA the BLM wrote in 2015. Now it's 75 pp of text and 200 pp of appendices. So how is that better? On the timeline, the start of an EIS is pretty clear, when the Notice of Intent (NOI) is released. What about for an EA, when does that start? Currently there is no consistent definition within DOI that I have seen and I venture to guess we won't see one defined. Some agencies may interpret that the clock starts at the EA kickoff meeting; others may interpret the clock to start with the first submission of the Admin Draft EA. Thus, agencies will continue their current practice of preparing all the technical analysis up to and including an Internal Administrative Draft EA/EIS and when they feel that is ready to go then they will release the NOI and / or start the EA clock. Will this be challenged in court, yes, but even if the rule change is made I don't see this really expediting projects.