Today, the Council on Environmental Quality (CEQ) announced it will publish a final rule in the Federal Register to amend three provisions of its regulations for implementing the National Environmental Policy Act (NEPA), addressing the purpose
and need of a proposed action, agency NEPA procedures for implementing CEQ’s NEPA regulations, and the definition of “effects.”
The amendments generally restore provisions that were in effect for decades before being modified in 2020 by the Trump administration.
The first revised provision pertains to the requirement for a purpose and need statement in an environmental impact statement. NEPA requires Federal agencies to prepare these “detailed statements” for “every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.” The new revision clarifies that agencies have discretion to consider a variety of factors when assessing an
application for an authorization, removing the requirement that an agency base the purpose and need on the goals of an applicant and the agency’s statutory authority.
The second change will remove language in part of the law that could be construed to limit agencies’ flexibility to develop or revise procedures to implement NEPA specific to their programs and functions that may go beyond the CEQ regulatory requirements.
The final revision addresses the definition of “effects” in a portion of the law to include direct, indirect, and cumulative effects. CEQ is making these changes in order to better align the provisions with CEQ’s extensive experience implementing NEPA and unique perspective on how NEPA can best inform agency decision making, as well as longstanding Federal agency experience and practice, NEPA’s statutory text and purpose to protect and enhance the quality of the
human environment, including making decisions informed by science, and case law interpreting NEPA’s requirements.
Purpose of NEPA and 2020 revisions
NEPA seeks to “encourage productive and enjoyable harmony” between humans and the environment, recognizing the “profound impact” of human activity and the “critical importance of restoring and maintaining environmental quality” to the overall welfare of humankind. The law also recognizes that each person should have the opportunity to enjoy a healthy environment and has a responsibility to contribute to the preservation and enhancement of the
environment.
In 2017, the Trump Administration issued an executive order directing, in part, CEQ to establish and lead an interagency working group to identify and propose changes to NEPA regulations.
In 2020, CEQ published a notice of proposed rulemaking proposing broad revisions to NEPA regulations. Many commenters provided detailed feedback on the legality, policy wisdom, and potential consequences of the proposed amendments. In keeping with the proposed rule, the final rule – effective on September 14, 2020 – made wholesale revisions to the regulations.
In 2020, the Biden Administration issued an executive order, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, calling on Federal agencies to review existing regulations issued during the Trump Administration for consistency with the policy the executive order articulates and to take appropriate action. CEQ was specifically directed to review the 2020 regulation changes made to NEPA.
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