Biden Administration Restores More Stringent Environmental Review under NEPA

The White House Council on Environmental Quality (CEQ) today published its final rule to amend three provisions of its National Environmental Policy Act (NEPA) regulations. The amendments largely are the same as the changes proposed this past fall, and are intended to restore provisions that were in effect for decades before they were modified in 2020 by the Trump administration, as described in our January 2020 and July 2020 client alerts.

In the summer of 2020, the Trump administration made broad changes to CEQ’s NEPA regulations that significantly reduced the scope and timeline of federal NEPA review. Upon taking office, the Biden administration promptly announced a review of all regulations, orders, guidance documents, policies, and any other similar agency actions promulgated during the Trump administration that are or may be inconsistent with, or present obstacles to, the Biden administration’s environmental goals, pursuant to E.O. 13990 (Jan. 20, 2021).

The CEQ thereafter announced that it would conduct a comprehensive and two-phased review of the 2020 NEPA regulations. The amendments to the 2020 regulations announced today, which will go into effect on May 20, 2022, complete the Phase 1 rulemaking and are as follows:  

• CEQ restored the full authority of agencies to analyze alternative approaches to a proposed project when conducting an Environmental Impact Statement (EIS). Under the 2020 regulations it was unclear whether agencies were limited by their statutory authority and the applicant’s goals when considering alternatives. CEQ also made a conforming edit to the definition of “reasonable alternatives” by deleting the reference to the goals of the applicant.
• CEQ reestablished that CEQ’s NEPA regulations are a floor, not a ceiling, for agency NEPA procedures. Under this amendment, agencies have discretion and flexibility to develop procedures beyond CEQ requirements. The 2020 regulations had included “ceiling provisions” that made CEQ regulation the maximum requirements that agencies could include in their NEPA procedures.
• CEQ broadened the definition of “effects” to include “direct effects,” “indirect effects,” and “cumulative impacts,” including climate change impacts. The 2020 regulations essentially eliminated indirect effects and cumulative impacts from the definition of “effects.” CEQ restored consideration of those impacts, and deleted in its entirety the 2020 regulations text that (1) stated that a “but for” causal relationship is insufficient to make an agency responsible for a particular effect under NEPA; (2) generally excluded from the definition of “effects” those that are remote in time, geographically remote, or the product of a lengthy causal chain; and (3) fully excluded effects that the agency had no ability to prevent due to its limited statutory authority or that would occur regardless of the proposed action.

Over the next few months CEQ will propose a Phase 2 rulemaking that will further revise the 2020 NEPA regulations. Notably, CEQ intends to address in its Phase 2 rulemaking whether NEPA regulations should more specifically direct the manner in which agencies analyze certain categories of effects, such as climate change and environmental justice, or whether such categories of effects are better addressed, for example, through guidance documents  assessing greenhouse gas emissions and climate change in environmental reviews.

For more information about the amendments made to the 2020 regulations or the Phase 2 rulemaking, please contact Lisa Gilbreath (207.791.1397), Randy Rich (202.530.6424), or Georgia Bolduc (207.791.1249).