USA - Biden Administration Walks Back Key Trump Era NEPA Regulation Changes
CEQ explains that these changes are necessary to “help ensure the proper scope of analysis that NEPA requires, including analysis of effects on climate change, communities with environmental justice concerns, and wildlife.”
On April 20, 2022, the Council on Environmental Quality (“CEQ”) published a final rule reversing strategic changes made under the Trump administration to CEQ regulations implementing the National Environmental Policy Act (“NEPA”) (“Final Rule”). The Final Rule will be effective May 20, 2022.
The Final Rule largely follows the changes outlined in CEQ’s October 7, 2021, Proposed Rule, detailed in our previous alert, restoring three key provisions back to the prior regulations with minor non-substantive modifications: (1) considerations relevant to the development of the “purpose and need” of a proposed action; (2) the definition of “effects,” restoring the prior definitions of direct, indirect, and cumulative effects; and (3) agency flexibility to develop NEPA implementation procedures that go beyond the government-wide NEPA regulations. CEQ intends that the provisions in this Final Rule have the same meaning as the corresponding provision in the regulations in effect prior to the Trump administration’s 2020 “Update to the Regulations Implementing the Procedural Provisions of NEPA” (“2020 Rule”).
This Final Rule completes the first of a two-phased process by the Biden administration to reconsider and revise the 2020 Rule to ensure that CEQ’s NEPA regulations “provide for sound and efficient environmental review of Federal actions, including those actions integral to tackling the climate crisis, in a manner that enables meaningful public participation, advances environmental justice, respects Tribal sovereignty, protects our Nation’s resources, and promotes better environmental and community outcomes.” CEQ is separately developing a Phase 2 rulemaking, which it has said will consider the 2020 Rule and the NEPA regulations comprehensively.
Background on NEPA Regulations
CEQ issued its regulations implementing NEPA in 1978, eight years after the statute was enacted. In the years since, CEQ issued various guidance documents to help guide agencies and stakeholders in understanding and carrying out the statute, but those regulations remained largely unchanged for more than 40 years until they were extensively revised by the Trump administration in the 2020 Rule. For additional information on the 2020 Rule, please see our previous alert. Expectedly, certain aspects of the 2020 Rule were highly controversial, and multiple lawsuits were filed challenging the rule following its issuance.
On his first day in office, President Biden issued Executive Order 13990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis (Jan. 20, 2021), which directed the review of regulations issued by the Trump administration for consistency with the new administration’s environmental priorities. An accompanying White House fact sheet specifically identified the 2020 Rule for CEQ review. In addition, on January 27, 2021, the President signed Executive Order 14008, Tackling the Climate Crisis at Home and Abroad, which directed the CEQ Chair to ensure federal permitting decisions consider the effects of greenhouse gas emissions and climate change.
On June 29, 2021, CEQ issued an Interim Final Rule, which extended until September 14, 2023 a deadline imposed under the 2020 Rule for federal agencies to develop or update their NEPA implementing procedures to conform to the 2020 Rule. CEQ extended the date by two years to avoid agencies proposing agency-specific implementing procedures to conform to regulations that are currently undergoing extensive review and, according to CEQ, “will likely change in the near future.” The Final Rule does not revise this deadline.