On July 31, 2023, the White House Council on Environmental Quality (CEQ) released the second phase of its revisions to the National Environmental Policy Act (NEPA) implementing regulations that govern federal environmental review. Titled the “Bipartisan Permitting Reform Implementation Rule,” the proposed rule reflects CEQ’s aim to revise and modernize the regulations and incorporate updates to address recent statutory changes to NEPA in the Fiscal Responsibility Act of 2023.1
In many respects, the proposed rule embodies the Biden Administration ethos to build clean, fast, and equitably — a philosophy also reflected in the structure of the Inflation Reduction Act of 2022’s clean energy and infrastructure incentives. As CEQ frames it, the proposed rule aims to promote efficiency and regulatory certainty, full and fair public involvement, and sound decision making grounded in science, including consideration of relevant environmental, climate change, and environmental justice effects. This proposal arrives just over a year after CEQ finalized a more narrow “Phase 1” rule in April 2022 that restored three elements of the NEPA regulations rescinded by the Trump Administration in 2020.
While the proposed rule marks a departure from the Trump Administration’s 2020 final rule, a number of CEQ’s proposed 2023 changes have origins in the prior, longstanding 1978 version of the regulations. Where the proposal breaks new ground, such as by adding climate change and environmental justice to the regulatory text, many of those revisions have roots in established agency practice. This post highlights select key changes and is not an exhaustive review of the proposed rule.
Climate Change. For the first time, CEQ’s proposed regulations address climate change specifically and encourage analysis of climate-related effects associated with federal actions. Many of these elements are also contained in CEQ’s January 2023 Guidance on Consideration of Climate Change and Greenhouse Gas Emissions. For instance, the proposed rule:
- Provides that agencies should account for reasonably foreseeable climate change-related effects, as well as the effects of climate change on the proposed action and alternatives;
- Encourages identification of any “relevant risk reduction, resiliency, or adaptation measures incorporated into the proposed action or alternatives”;
- Defines “effects” to include “climate change-related effects”; and
- In the statement of policy, encourages agencies to use the NEPA process to identify and assess alternatives to a proposed action that will reduce climate change-related effects.
While many environmental reviews already incorporate most of these concepts, the proposed regulatory amendments add detail and clarity and may encourage more upfront planning or mitigation measures to reduce greenhouse gas emissions and climate change effects.
Beneficial Effects. The proposed rule states that only actions with significant adverse effects require a more detailed environmental impact statement (EIS), as opposed to any actions with significant beneficial or adverse effects. In describing this change, CEQ provides the example of a renewable energy project that may have short-term construction-related GHG emissions as well as long-term reductions in GHG emissions. In such case, an agency could reasonably determine that the climate effects of the proposed action would not be significantly adverse, and therefore that an EIS would not be required. Beyond clean energy projects, this change may allow some beneficial actions like reclamation or restoration projects to be permitted more efficiently.
Environmental Justice and Meaningful Public Engagement. The proposed rule makes a number of additions to make clear that environmental reviews should account for environmental justice. For example, the proposal would add a definition of “environmental justice” to the regulations and add specific mention of “disproportionate and adverse effects on communities with environmental justice concerns” as an example in the definition of “effects.” In restoring the concepts of “context” and “intensity” from the 1978 regulations in this proposed rule, CEQ also makes tweaks to include reference to communities with environmental justice concerns in that framework for evaluating the significance of environmental effects.
CEQ also emphasizes “meaningful public engagement” and public participation in a more robust manner than the 2020 regulations, and eliminates some technical requirements placed on public commenters in the 2020 rules.
Efficiency and Categorical Exclusions. CEQ marries its focus on robust analysis with a number of efficiency provisions, such as:
- Adopting 1- and 2-year timelines for completing environmental assessments (EAs) and EISs, respectively, as required by the Fiscal Responsibility Act;
- Requiring publicly available schedules for EAs and EISs that include key milestones, as well as schedules for any other required authorizations;
- Encouraging programmatic reviews and tiering, to avoid duplication; and
- Creating two new avenues for agencies to adopt categorical exclusions (which when applied appropriately, eliminate the need for an EA or EIS):
(i) allowing agencies to propose categorical exclusions jointly with another agency, and
(ii) allowing agencies to propose categorical exclusions as part of a land use plan or other planning or programmatic decision, after following a process that includes CEQ review and public notice.
As noted in an earlier post on the Fiscal Responsibility Act, the ability of agencies to meet the new 1- and 2-year timelines may rest on the successful deployment of adequate funding and resources for permitting. More effective use of technology, which Congress recently tasked CEQ with investigating, is also likely to be a driver of additional efficiency gains.
Innovative Approaches to Reviews. CEQ proposes a new section that would allow federal agencies to pursue, with CEQ approval, innovative approaches to NEPA compliance to address “extreme environmental challenges,” including those driven or exacerbated by climate change. CEQ cites as examples of extreme environmental challenges: sea level rise, increased wildfire risk, water scarcity, degraded water or air quality, species loss, disproportionate and adverse effects on communities with environmental justice concerns; and more. CEQ seeks public comment on whether such a provision is needed.
Next Steps. CEQ is accepting public comments on the proposed rule through September 29, 2023. In addition, CEQ will hold four virtual public meetings for the proposed rule, on August 26 and 30, and September 11 and 21.
1. The author led work on these revisions when she served as Senior Director for Clean Energy, Infrastructure, and NEPA at CEQ from February 2021 through April 2023, and is not at liberty to disclose confidential information about that work.