Implications of the New NEPA Regulations

Change can be hard, but often necessary. For the first time since 1978, the Council on Environmental Quality has overhauled regulations of the National Environmental Policy Act (NEPA). The objective: to simplify and accelerate the environmental review process for proposed federal projects.

The newly enacted changes reflect a recognized need to streamline the review process while ensuring that federal agencies continue to do their due diligence and take a hard look at environmental impacts before making decisions. Though NEPA remains the mainstay of environmental requirements for federal actions, the new regulations will affect how it is implemented.

ANALYZING KEY CHANGES

The most visible changes to NEPA fall into five areas: adding page and time limits; streamlining effects analysis; expanding the use of categorical exclusions; clarifying use of best scientific data; and narrowing the definition of major federal action. Together, these reinforce the goal of this landmark legislative overhaul: to make environmental reviews more effective, as well as less costly and time-consuming.

The most visible changes to NEPA fall into five areas: adding page and time limits; streamlining effects analysis; expanding the use of categorical exclusions; clarifying use of best scientific data; and narrowing the definition of major federal action.

Adding page and time limits. While new page and time limits may appear arbitrary, they push federal agencies to focus on important environmental topics and present information in a format that makes it easier for the average citizen to grasp. Agencies are now limited to 75 pages for Environmental Assessments (EAs) and a deadline of just one year to complete them. Similarly, agencies are limited to 150 pages (300 for complex documents) for Environmental Impact Statements (EISs) and have two years for completion.

The old NEPA regulations stated that EISs should “normally” not exceed 300 pages and that agencies “are encouraged to set time limits.” However, rarely was either done, despite the regulations explicitly stating that NEPA’s purpose was not to generate paperwork (even “excellent paperwork”).

Public involvement and engagement is a foundational cornerstone of NEPA. But public reviewers have previously complained that longer and more complex documents discourage meaningful review. Additionally, EISs often take so long to complete that the public loses interest in the project. Planners should strive to prepare EAs and EISs that are robust summaries of issues and expected impacts. The new page limit requirements will force agencies to summarize issues and impacts succinctly, and be more creative with the use of tables, graphics, and images to tell the environmental story.

Streamlining effects analysis. Before the recent revision, NEPA regulations required a separate assessment of direct, indirect, and cumulative effects. This requirement forced the government to spend time deciding how to categorize impacts and structure analysis instead of presenting logical detailed assessments.

The concept of assessing the impacts of a proposed federal agency action combined with “other past, present, and reasonably foreseeable” actions often led to lengthy and encyclopedic analyses that checked the box but rarely added value. Additionally, because the cumulative impacts discussion was often a separate chapter, the public struggled to understand the overall picture. Rather than categorizing the type of effect, the analysis should now be done in an integrated manner that better tells the comprehensive story and focuses on whether the proposed action causes an effect.

Expanding the use of categorical exclusions. The change that will have the greatest impact in terms of the sheer number of EAs is how categorical exclusions can be utilized. The revised regulations allow for utilization of another agency’s categorical exclusion or the adoption of another agency’s categorical exclusion for a new but similar project. This “adoption” provision expands on a process already allowed for EAs and EISs.

Federal agencies have 50 years of NEPA experience assessing impacts and identifying categories of actions that do not have significant impacts on the environment, including a long administrative record of examples. The revised regulations recognize this history and the fact that categorical exclusions represent the greatest number of NEPA actions.

Clarifying use of best scientific data and narrowing the definition of major federal action. The last two key changes to the regulations could reduce the scope of data collection required and even the number of federal actions that are subject to NEPA. First, the revised regulations state that “agencies are not required to undertake new scientific and technical research to inform their analysis.” Second, a “major federal action” is now defined as “an activity or decision subject to federal control and responsibility.”

This clear definition of what constitutes a “major federal action” could prove to be helpful, especially when the federal action is very limited in scope that it facilitates another entity’s much larger state or private project.

ADOPTING EARLY BUY-IN

The key to implementing the revised NEPA changes is early buy-in and a focused approach from all team members. Cultivating relationships between action proponents and regulatory agencies is also helpful. Regulators who feel over-extended might just respond more quickly.

In order to meet page and time limits, team members should first develop a clear mutual understanding of the scope of work. Having an early scope-clarification meeting with all parties offers a chance to confirm everyone is on the same page and brainstorm likely areas of concern.

Areas that are likely to require only a limited analysis due to an anticipated negligible or no impact determination should be identified. This will refine the level of effort, set up a concise analysis of the more potentially impacted resources, and make for a shorter review. Agencies can then put much of the detailed analysis in appendices or on a public website for those who want to review that detailed information.

The new regulations clearly state an EIS clock begins with the publication of the Notice of Intent and ends with the Record of Decision. For EAs, there is no common starting line, just common practice. Coordinate with your organization or agency to define and consistently implement a standard EA start time. The EA finish line is the Finding of No Significant Impact.

In place of cumulative impacts, agencies should now include “reasonably foreseeable environmental trends and planned actions in the agencies’ action area” in the “Affected Environment” discussion. Past and current actions should fold into the environmental baseline. Additionally, the action proponent should consider any proposed future actions that could affect similar resources as the proposed action—although the revised regulations stress that agencies need not consider the environmental effects if they are remote in time or geography, or the product of a lengthy causal chain. In essence, use common sense when assessing impacts and count what counts.

The categorical exclusion adoption provision will be especially handy when a proposed action involves two or more agencies or when one takes an action on another’s land. To use another federal agency’s categorical exclusion, agencies must first set up formal procedures, which includes consulting with the other federal agency before using their categorical exclusion and making the record of the categorical exclusion available to the public. NEPA planners should become familiar with the other agency’s categorical exclusions. These two provisions just might result in an efficient solution to the NEPA compliance challenge. The provision on using best scientific data also is helpful as it suggests agencies can rely on existing best available science to inform their NEPA analysis. A note of caution: agencies must also rule out possible new data collection requirements associated with other environmental laws like the Endangered Species Act.

FOSTERING INFORMED DECISIONS

The adage of “if the project includes a single federal dollar, NEPA applies” is no longer a valid rule for determining a federal nexus and NEPA trigger. For example, a project could include granting an easement for a road or utility project across federal land. Historically, this real estate action would trigger NEPA and require the granting entity to consider the full impact of the proposed action. Under the new provision however, this may not trigger a NEPA review depending on the project details (and input from counsel).

The new regulations will spur focused engagement and timely project execution while continuing to foster informed decision-making. The fundamental NEPA requirements—to consider reasonable alternatives, to take a hard look at impacts, and to involve the public—are still in place and will remain critical to successful compliance moving forward.

Joseph “Dan” Cecchini is Director for Environmental Planning and Terrestrial Resources, Office of the Assistant Secretary of the Navy (Energy, Installations & Environment); joseph. cecchini@navy.mil.

Melanie Hernandez, CEP, M.SAME, is Environmental Attorney and Senior NEPA Planner, and Ryan Pingree, M.SAME, is Senior NEPA Planner, Scout Environmental. They can be reached at melanie.hernandez@scoutenv.com; and ryan.pingree@scoutenv.com.

The views presented by Mr. Cecchini are his personal views and do not necessarily represent the views of DOD or its components

[This article first published in the January-February 2021 issue of The Military Engineer.]