The National Environmental Policy Act (NEPA) applies to a major federal action that significantly affects the quality of the human environment. On June 30, several federal agencies took their own federal action which will likely have significant impacts in how NEPA is implemented in the future.
In particular, the Federal Energy Regulatory Commission, Department of Agriculture (DOA), Department of Energy (DOE), Department of Interior (DOI) and Department of Transportation (DOT) revoked their regulations which govern how these agencies handle their review of proposed projects under NEPA.
The actions come in response to the administration’s Executive Order, “Unleashing American Energy,” signed on January 20, aimed at increasing energy development within the United States, as well as the Supreme Court’s recent decision in Seven Cnty. Infrastructure Coal. v. Eagle County, which limits the scope of environmental reviews under NEPA (previously covered by ELM here).
While some agencies proposed new regulations to replace old ones, other agencies issued nonbinding guidance. For example, FERC issued a 20-page staff manual with revised procedures for environmental reviews for projects such as natural gas pipelines. The manual provides details on how staff will assess what actions are subject to NEPA’s procedural requirements and the requisite level of NEPA review; ensure that relevant environmental information is identified and considered early in the process to support informed decision making; conduct coordinated, consistent, predictable and timely environmental reviews, and reduce unnecessary burdens and delays; and implement NEPA’s mandates regarding lead and cooperating agency roles, time limits, and applicant preparations of environmental documents.
Notably, these revised procedures are part of a Final Rule that becomes effective 45 days after publication in the Federal Register.
Similarly, DOE issued implementing procedures, which became effective June 30. Prior to the effective date of DOE’s interim final rule, DOE will implement its new procedures alongside its NEPA procedures in 10 CFR part 1021. If there is a conflict, the requirements in 10 CFR part 1021 will prevail, unless a requirement in 10 CFR part 1021 is inconsistent with NEPA, as amended. In such case, DOE will implement its new NEPA procedures and ensure compliance with NEPA, as amended. Then, beginning on the effective date of DOE’s interim final rule, DOE will rely fully on its new NEPA implementing procedures and the revised version of 10 CFR part 1021 described in this interim final rule.
Additionally, DOT, DOI, and DOA issued interim final rules to replace the old regulations until new regulations can be implemented. Key changes by these agencies include enforceable deadlines and page limits for environmental studies; clarifying that NEPA only applies when agencies truly control a project’s environmental footprint; and streamlined “categorical exclusions” that exempt routine, low-impact actions from lengthy analysis.
Proponents of the rule revocations believe these changes will greatly speed up the permitting process for large infrastructure projects, making projects more affordable. For example, according to a regulatory impact analysis conducted by the DOI, it took the DOE a median time of 2.2 years to complete environmental impact statements over a three-year period starting in 2021. Notably, this was down from 3.8 years from 2017 to 2021.
On the other hand, opponents argue the agencies’ actions will weaken the implementation of NEPA, including consideration of climate change and environmental justice. Once the interim final rules are published in the Federal Register, the public will be able to provide comments on these agency actions.