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This post was co-authored by Stoel Rives summer associate Connor McRobert.

On May 1, 2024, the White House Council on Environmental Quality (CEQ) published notice in the Federal Register of a final rule amending its regulations implementing the National Environmental Policy Act (NEPA). The final rule, known as the Phase II revisions to NEPA, comes nearly a year after CEQ issued its proposed rule and is mostly consistent with the proposed rule. Notably, the final rule emphasizes that NEPA contains action-forcing procedural requirements to implement the letter and spirit of the Act. This shifts the traditional view that NEPA is a purely procedural statute that only informs decision-making and does not mandate outcomes. Although CEQ intends these changes to add regulatory certainty, it is highly likely the final rule will be subject to court challenges. In addition to the new NEPA characterization, the final rule adopts multiple changes that substantially expand NEPA in scope and impact several aspects of the NEPA review process. Key changes in the final rule include:

Consideration of Climate Change. The final rule requires agencies to analyze the effects of climate change on projects and, conversely, the potential effects of projects on climate change. Specifically, where feasible, projects must quantify greenhouse gas emissions from the proposed action and alternatives. Broadly, the final rule adds climate change to a host of effects that an agency must already consider.Continue Reading Council on Environmental Quality Publishes Final Rule Substantially Amending NEPA

There has been a string of actions in the past few weeks addressing the federal government’s policy goal of streamlining the NEPA review process.  Although a number of actions have been taken, it presently boils down to this:  the federal government seems to genuinely be pursuing ways to make the NEPA process for infrastructure projects (including energy projects) faster, more predictable, and more efficient.  Whether and how this will be implemented in practice remains to be seen.  The Dept. of Interior and CEQ have been the first to take (aspirational) actions to implement this policy.  The following summarizes the recent actions.

President Trump issued Executive Order 13807, titled “Establishing Discipline and Accountability in Environmental Review and Permitting Process for Infrastructure Projects. Among other things, EO 13807 directs the following:

  • Development of a “performance accountability system” to track milestones and deadlines “major infrastructure projects,” score agencies’ ability to meet those deadlines, establish best practices for the permitting/review of infrastructure projects.  Projects would also be tracked through a “dashboard” that is updated monthly.
  •  Implement “One Federal Decision” for major infrastructure projects.  Under “One Federal Decision,” a project would have a single lead agency that will coordinate all necessary federal approvals and issue a single record of decision to address all those approvals.
  • The completion of all permit decisions should occur within 90 days of the ROD, and “not more than an average of approximately 2 years” after issuance of the notice of intent to prepare an EIS.
  • CEQ’s development of a list of initial actions that it will take to modernize the federal environmental review process, which can include issuing new regulations, guidance, and other directives.

For purposes of the EO, “major infrastructure project” essentially includes energy, water, and transportation projects for which multiple federal authorizations are required and for which an EIS is required.  The EO is fairly general and ambiguous and leaves room for exceptions to just about all of its directives.  The EO can be viewed here:  https://www.whitehouse.gov/the-press-office/2017/08/15/presidential-executive-order-establishing-discipline-and-accountability.

CEQ responded by issuing a notice listing the actions it plans to take to implement EO 13807, as follows:
Continue Reading Recent Federal Actions to Streamline the NEPA Process

On Monday, July 19, 2010, the White House Council on Environmental Quality ("CEQ") issued the Final Recommendations of the Interagency Ocean Policy Task Force.  The Final Recommendations are the culmination of a process that began on June 12, 2009 when President Obama formed the Task Force and tasked it with developing recommendations to enhance…