Trump Administration Releases Overhaul of NEPA Implementing Regulations

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Late last week, in a historic action, the White House Council on Environmental Quality (CEQ) released a proposed rule to revise the enforcement of the National Environmental Policy Act (NEPA). Signed into law in 1970, the NEPA review process requires federal agencies, prior to development, to evaluate the environmental impacts of their proposed actions. The NEPA review process is broad and includes making decisions on permit application, adopting federal land management actions, and constructing highways and other publicly owned facilities.

Under NEPA implementation, CEQ is the coordinating entity between the White House and around 80 federal agencies that fall under NEPA’s jurisdiction. To some, this has lead to it taking federal agencies between four and seven years to complete environmental impact statements (EIS) and the statements exceed 600 pages on average.

The Trump Administration in 2017 issued an executive order, known as the “One Federal Decision,” directing CEQ to amend the NEPA process and develop a single permitting timetable for environmental review and authorization, preparing a single EIS, establishing a single record of decisions, and allowing for decisions to be authorized within 90 days.  Leading from this point, the Trump Administration issued the latest proposed rule to continue addressing areas to improve the process.

Some of the key points of the current proposed rule include:

  • Establish a presumptive time limit of two years for completion of environmental impact statements (EISs) and one-year completion of environmental assessments (EAs). Requires joint schedules, a single EIS, and a single record of decision (ROD), when appropriate for EISs involving multiple agencies.
  • Clarify terms, application process, and scope of NEPA review by providing direction on whether the NEPA process is required for a particular action; require comments to be specific and timely to ensure appropriate consideration; and simplify the definition of environmental ‘effects’ and clarify that effects must be reasonably foreseeable and have a reasonably close causal relationship  to the proposed action.
  • Enhance coordination with state, tribal, and local governments by reducing duplicated documentation.
  • Reduce unnecessary burdens and delays by facilitating the use of efficient reviews (categorical exclusions (CEs) and environmental assessments) and allow agencies to establish procedures for adopting other agencies’ CEs.

Currently, the ASCE government relations team is reviewing the nearly 200-page proposed rule and will work closely with members to provide comments before the end of the 60-day period. ASCE policy supports efforts to streamline the permitting process, as long as such efforts are made with safeguards in place to protect the natural environment. In 2018, ASCE commented on the advanced notice of proposed rulemaking on updating NEPA, and urged CEQ to ensure that any updates or changes follow a balanced approach that protects the health, safety and welfare of the public, while addressing our nation’s critical infrastructure needs. The current comment period ends on March 10, 2020.

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