Trump Proposes Significant Rule Changes to Federal Agency NEPA Reviews

In early January, the Trump administration proposed the largest changes to the federal regulations enacting the National Environmental Policy Act (NEPA) since it was first legislated approximately 50 years ago.

NEPA is a federal environmental law that requires federal agencies to consider the environmental impacts of any agency actions. NEPA does not require an agency to consider the least environmentally impactful alternative. Instead, NEPA is a procedural statute that requires federal agencies to assess the environmental impacts and consider alternatives. The procedures required by the current regulations can be cumbersome, particularly for complicated projects that require consultation between multiple federal agencies. As a result, the documentation and procedures necessary to comply with NEPA can take years. The White House estimates that the average time to complete an Environmental Impact Statement (EIS) is estimated at 4.5 years, although the NEPA process is substantially shorter for projects with minimal impacts (that only require an Environmental Assessment [EA]) or that are not expected to have an environmental impact (and are eligible for a Categorical Exclusion).

In response, President Trump’s Council on Environmental Quality (CEQ) proposed changes to NEPA, with a stated goal of streamlining the process and facilitating approval of infrastructure projects. But environmental groups worry that the changes will substantially weaken the impact of the law, threatening wildlife and increasing greenhouse gas emissions.

The proposed changes are wholesale and include limits on the applicability of NEPA, the breadth of the environmental review, and the depth of any analysis. Some of the major proposed changes include:

• Reducing the total number of projects to which NEPA applies. Instead of applying to all “major federal actions,” the proposed changes would exempt those projects that only have minimal federal funding or minimal federal involvement.
• Eliminating the requirement to consider the cumulative or indirect impacts of the action. Currently, an agency must consider the direct and indirect effects of the project, including the potential impacts of a project on climate change. Under the proposed change, an agency would only have to consider effects that are “reasonably foreseeable” and have a “reasonably close causal relationship to the proposed action or alternative.”
• Establishing time and page limits intended to streamline the NEPA process. Under the new rules, there would be presumptive time limits for completion of the review process of two years for an EIS and one year for an EA. Additionally, the EIS would be limited to 150 pages or fewer for typical projects, or 300 or fewer for “proposals of unusual scope or complexity.”

The proposed changes have received substantial attention from environmental groups opposing the changes and industry trade groups supporting the changes. As a result, it is likely that the final rule will be challenged in federal court.

About the Author: Nathaniel Morse

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