Landmark Rewrite of NEPA Rules Unveiled; Comments Invited By March 20th
By MARY KAUFFMAN
January 11, 2020
Called “Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act”, President Donald Trump said in his remarks Thursday, "Today, we’re taking another historic step in our campaign to slash job-killing regulations and improve the quality of life for all of our citizens."
The president, during remarks at the White House with supporters and Cabinet officials, said he wanted to fix the nation's "regulatory nightmare" through new guidelines for implementing the National Environmental Policy Act.
President Trump said, "From day one, my administration has made fixing this regulatory nightmare a top priority. And we want to build new roads, bridges, tunnels, highways bigger, better, faster, and we want to build them at less cost." (Read the full remarks of President Trump)
Signed into law in 1970, NEPA requires Federal agencies to assess the environmental impacts of proposed major Federal actions as part of their decision-making. The NEPA process can impact a wide variety of projects affecting Americans’ everyday lives from the construction of roads, bridges, highways, and airports to water infrastructure, conventional and renewable energy projects, and land, forest, and fishery management activities. CEQ’s NEPA regulations date back to 1978 and have not been comprehensively updated in over 40 years.
Over time, implementation of NEPA has become increasingly complex and time consuming for Federal agencies, project applicants, and Americans seeking permits or approvals from the Federal government. The Council on Environmental Quality has found that the average length of an environmental impact statement is over 600 pages, and that the average time for Federal agencies to complete such NEPA reviews is four and a half years.
The Council on Environmental Quality’s proposed rule would modernize and clarify the Council on Environmental Quality regulations to facilitate more efficient, effective, and timely NEPA reviews by simplifying and clarifying regulatory requirements, incorporating key elements of the One Federal Decision policy, codifying certain case law and CEQ guidance, updating the regulations to reflect current technologies and agency practices, eliminating obsolete provisions, and improving the format and readability of the regulations. The proposed rule seeks to reduce unnecessary paperwork and delays, and to promote better decision-making consistent with NEPA’s statutory requirements.
U.S. Sen. Lisa Murkowski (R-AK) welcomed President Trump’s decision to propose a modernization of federal environmental review and permitting processes under the National Environmental Policy Act (NEPA) of 1970.
Back in February 2013, then-Ranking Member Murkowski released Energy 20/20: A Vision for America’s Energy Future. The blueprint called for “mandatory timelines for completion of the NEPA process” and a broader reform plan “that consolidates, but does not deteriorate, the input of the various federal agencies” involved in the process.
In response to Thursday's announcement U.S. Senator Dan Sullivan (R-AK) released a prepared statement saying, “Because of our broken public works and environmental approval process, our country’s infrastructure is in serious disrepair.”
Senator Sullivan said, “Our bridges, our water mains, our transportation corridors, our energy grid - the very foundations of our country- are crumbling. Reform is desperately needed and I applaud the Trump administration’s proposed rule to modernize our NEPA regulations to provide more certainty and consistency during the permitting process. The administration’s proposal in many significant ways parallels a title of the Rebuild America Now (RAN) Act, a bill that I introduced which would set realistic deadlines for NEPA reviews, simplify NEPA documents, and streamline the NEPA process - all of which would help us build vital infrastructure projects faster as well as create jobs for the hardworking men and women who build our country. As the Trump administration proposal is being considered, I’ll continue to work on the RAN Act and support other reasonable reforms both through regulations and legislation.”
“CEQ is proposing practical changes to modernize environmental reviews and make the process more predictable and efficient. The proposed rule would ensure Federal agencies consider the significant environmental impacts of proposed projects and activities, while accelerating the process so that timely decisions are made on major infrastructure and other projects affecting Americans’ everyday lives. Americans deserve a government that is efficient, effective, and responsive,” said CEQ Chairman Mary B. Neumayr.
“Overhauling the NEPA regulations for the first time in a generation is another promise kept by President Trump. Over the past 40 years, NEPA has been used as a tool to slow or completely kill important infrastructure projects across the country. Our Administration continues to uphold environmental standards while streamlining the permitting process and removing frivolous litigation. No American city should be waiting over 30 years for a better highway because NEPA has their infrastructure project held up in unnecessary paperwork,” said Acting Office of Management and Budget Director Russ Vought.
"The purpose of NEPA is noble; its application, however, has gone off the rails. The action by CEQ is the first step in bringing common sense to a process that has needlessly paralyzed decision-making. We can ensure that our views are well-informed and that the public is heard without tying ourselves in knots. CEQ is to be commended for seeking public comment on this initiative," said Secretary of the Interior David L. Bernhardt.
“Common sense reforms in simplifying and streamlining environmental reviews will accelerate the construction of much needed roads, bridges, transit, railroad, and port projects to alleviate congestion and improve the quality of life for communities across the country,” said U.S. Transportation Secretary Elaine L. Chao.
“Today’s action by CEQ is another important step towards fulfilling the Trump Administration’s commitment to streamlining duplicative and costly regulations that impede investment in American infrastructure and stifle economic growth,” said EPA Administrator Andrew Wheeler. “The proposed update to NEPA would further EPA’s progress to provide regulatory certainty and efficiency for states, tribes, and the private sector while protecting human health and the environment.”
“For years, NEPA regulations have been like quicksand to the regulated communities. The more they try to comply, the deeper into the regulatory muck they sink. I look forward to this rule- making as a way to put NEPA regulations on the solid ground of efficiency and predictability,” said Secretary of Energy Dan Brouillette.
“While our environment has changed substantially, our NEPA regulations have not been updated in over 40 years. President Trump is continuing to responsibly modernize our regulations to support America’s continued growth and prosperity,” said Secretary of Agriculture Sonny Perdue. “Rather than a tool for analyzing the impacts of federal actions, NEPA regulations have become a weapon used by those who seek to keep America’s farmers, producers, and foresters from producing American food and fiber. These modernizations enable the rule to do what it was intended to do.”
“The modernized NEPA process will better allow the U.S. Army Corps of Engineers to deliver important infrastructure projects designed to provide flood risk reduction, improve navigation, and restore vital ecosystems. The proposal streamlines and simplifies the NEPA procedures while concurrently adopting successful agency practices developed over the last 50-years,” said R.D. James, Assistant Secretary of the Army for Civil Works.
“These proposed updates to the regulations are aimed at modernizing the National Environmental Policy Act,” said retired Navy Rear Adm. Tim Gallaudet, Ph.D., Assistant Secretary of Commerce for Oceans and Atmosphere and Deputy NOAA Administrator. “The potential changes, such as the enhanced guidance on the roles of lead and cooperating agencies, will improve interagency coordination and facilitate effective reviews in an efficient and timely manner.”
On June 20, 2018, the White House Council on Environmental Quality (CEQ) issued an Advance Notice of Proposed Rulemaking (ANPRM), Update to the Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act, 83 Fed. Reg. 28,591. CEQ requested comments on potential revisions to its implementing regulations for the National Environmental Policy Act (NEPA). The comment period was extended once and closed on August 20, 2018
According to the Council on Environmental Quality the Advance Notice of Proposed Rulemaking issued in 2018 recieved over 12,500 comments, which the CEQ used to inform them on this proposed rule update.
In August 2018, a coalition of 10 attorneys general and state agencies submitted comments to the Council on Environmental Quality (CEQ) before the advanced notice comment deadline. The comments were led by California Attorney General Xavier Becerra, New York Attorney General Barbara Underwood, and Washington State Attorney General Bob Ferguson, and joined by Attorneys General of Illinois, Maryland, Massachusetts, New Jersey, Oregon, and Vermont, and the Pennsylvania Department of Environmental Protection. The States urged restraint and questioned the necessity of CEQ’s far-reaching reevaluation of its own National Environmental Policy Act (NEPA) regulations, arguing that the scope of CEQ’s review signals that a comprehensive overhaul of decades of regulatory precedent appears to be underway.
In their comment letter the States argued that there are no data to support the need for significant regulatory changes to NEPA, and raised a number of specific concerns about the effects of major revisions. These concerns include the potential for new limits on the public’s ability to participate in future environmental reviews, threats to the health of the States’ residents and local ecosystems, a potential weakening of the federal review process for nuclear waste sites and a loss in States’ capacity to enforce their own environmental protections.
The States also requested that the CEQ reinstate its NEPA Guidance on Climate Change finalized under the Obama Administration, and avoid any regulatory revisions that would enable the federal government to avoid evaluating climate change-related environmental impacts in future NEPA reviews.
In addition, there were others including environmental organizations who voiced opposition to changes before the 2018 comments deadline.
The Council on Environmental Quality said in a press release they have also conducted an extensive interagency process to develop this proposed rule update.
The Council on Environmental Quality is a division of the Executive Office of the President that coordinates federal environmental efforts in the United States and works closely with agencies and other White House offices on the development of environmental and energy policies and initiatives.
CEQ will host two public hearings on the proposed rule: in Denver, CO, on February 11, 2020 and in Washington, DC, on February 25, 2020. Additional details concerning the hearings and other public engagement, click here. The CEQ is requesting public comment on the NPRM update. Comments should be submitted on or before March 10, 2020.
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