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ELI Releases Guide to Proposed NEPA Regulations in Advance of March 10, 2020, Comment Deadline

February 2020

(Washington, D.C.): On January 10, 2020, the Council on Environmental Quality published in the Federal Register its proposal for a comprehensive rewrite of the National Environmental Policy Act (NEPA) regulations that govern how federal agencies identify, analyze, and mitigate for the anticipated environmental impacts of proposed major federal actions. Comments to the proposal are due March 10. Given the impact the proposed revisions could have on environmental governance in the United States, the Environmental Law Institute has released Practitioners’ Guide to the Proposed NEPA Regulations—an issue-spotter to assist commenters and others in determining what changes have been proposed and how they may relate to familiar NEPA regulatory concepts.

“This proposal should be of significant interest to all environmental lawyers and practitioners as it would make a number of important changes to the NEPA regulations that have substantially defined NEPA’s obligations since their adoption in 1978,” notes lead author James M. McElfish, Jr., a Senior Attorney with the Institute who heads ELI’s Sustainable Use of Land program. “The new regulations, if adopted, would govern all of NEPA practice across the federal government—not just infrastructure,” he added.

Because the proposed rule retains much existing language while adding new concepts, reorganizing the subject matter, and deleting various provisions, practitioners may welcome some assistance in identifying where the changes are and how they operate with one another. Moreover, not all of the changes are addressed in the preamble to the proposed rule.

As explained more fully in the guide, the proposal would, among other substantive changes:

  • remove the definition of “significantly”;
  • remove “cumulative effects” as an element of NEPA analysis;
  • redefine the range of reasonable alternatives;
  • establish time and page limits for environmental review;
  • delete conflict of interest provisions; and
  • create agency-certified “conclusive presumptions.”

The 1978 regulations have had an extraordinary influence on how environmental impacts are assessed, what alternatives must be evaluated, and how public participation is taken into account. In 1979, the U.S. Supreme Court wrote that these regulations were entitled to “substantial deference” in the interpretation of NEPA. If adopted as proposed, the regulations would supersede all existing CEQ guidance documents and handbooks, and require a complete revision of the NEPA procedures of all federal agencies within 12 months. Moreover, the proposal would create new interpretive issues for litigators, judges, and agencies across the country.

The guide is available for free at: https://www.eli.org/research-report/practitioners-guide-proposed-nepa-regulations.

The Council on Environmental Quality’s proposed rule is available at: https://www.federalregister.gov/documents/2020/01/10/2019-28106/update-to-the-regulations-implementing-the-procedural-provisions-of-the-national-environmental.

James M. McElfish, Jr., is available for interview.