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Update on the NEPA Regs - Our Thoughts (Cont.)

Last week we talked a little about some of the proposed changes to the NEPA regulations. To keep the post to a reasonable length we focused on the two biggest proposed changes. The elimination of the separate discussion on direct, indirect and cumulative impacts and the mandated timelines and page lengths. Today we'll talk about two more:

Change (1) the new definition of a "reasonable alternative". One of the hallmarks of the NEPA process is to not only examine the environmental effects of the Proposed Action but also to analyze the potential environmental effects of a reasonable range of alternatives. The current CEQ regulations provide little direction on determining the reasonableness of alternatives, so the courts have filled in the gaps. This has become one of the most common challenges in NEPA Case Law. CEQ is proposing that documenting alternatives in an EA would continue to be more limited than EIS requirements. Specifically, CEQ states that an agency does not need to include a detailed discussion of each alternative in an EA, nor does it need to include any detailed discussion of alternatives that it eliminated from study. Whereas for EIS, CEQ proposes to no longer require agencies to consider alternatives that are outside their jurisdiction or that are not "technically or economically feasible." CEQ also proposes that, where applicable, the alternatives must meet the goals of the applicant.

What's the effect on environmental impact analysis? Certainly if alternatives are no longer required to be discussed at the same level of detail in an EA it will go a long way towards meeting the new mandate for timelines and page limits. For EIS, this new definition could be beneficial to Federal agencies when the public suggests consideration of alternatives that are not technically or economically feasible. On the flip side, agencies will have to do their due diligence to show that an alternative is technically and economically feasible.

Change (2) the new definition of "major federal action". CEQ is proposing to revise the definition of "major federal action," which triggers the requirement for NEPA. CEQ is proposing to depart from longstanding precedent by giving the terms "major" and "significant" independent meaning. Under this revision, a federal project that is not "major" is not subject to NEPA review, even if the project has "significant" environmental impacts. By contrast, CEQ also proposes to find that "major federal actions" do not include "non-discretionary decisions" or federal projects with minimal Federal funding involvement, or control and responsibility. This provision also clarifies the meaning of "control and responsibility" and its applicability to financial assistance programs. As a result, CEQ is proposing to clarify that an action meets the definition if it is subject to “Federal control and responsibility, and it has effects that may be significant.”

What's the effect on environmental impact analysis? Certainly there is a good chance that projects that previously would have been subject to the NEPA process would not be going forwards.

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