President Trump Proposes Significant Revisions to the National Environmental Policy Act (NEPA)

In a new push to revise the rules implementing the National Environmental Policy Act (NEPA), President Trump’s Council on Environmental Quality (CEQ) hopes to provide industries performing major infrastructure projects  such as oil and natural gas pipeline construction with much needed regulatory relief. However, industry insiders are skeptical the CEQ’s proposed rule changes to NEPA will actually benefit the industries they were designed to help.

Late last week, President Trump’s Council on Environmental Quality proposed changes to the rules implementing the National Environmental Policy Act (NEPA) that would significantly roll back certain review requirements for major federal actions and exempt many major infrastructure projects from review under NEPA.

The proposed regulatory reductions are part of a continuing trend for the current Administration. Since taking office, the President has introduced almost 100 environmental regulatory rollbacks with the goal of reducing red tape and, among other things, accelerating construction of pipelines and other infrastructure projects.

The Administration’s particular revisions to NEPA rules would streamline and expedite NEPA approval for major infrastructure projects across the U.S., such as roads, bridges and pipelines. There are a number of key elements of the proposed rule.

• New deadlines would be imposed on completing environmental studies, including a one-year limit for less rigorous environmental assessments. With rare exceptions, agencies would be required to complete their most extensive reviews – Environmental Impact Statements – within two years. Both types of review would also be subject to page limits.
• The number of projects exempt from NEPA review would expand by creating a new category for non-major projects, which would be exempt from regulatory review. Assessment would end for non-Federal projects that have minimal Federal funding or minimal Federal involvement such that the agency cannot control the outcome of the project.
• Coordination with states, tribes and local governments would be enhanced by reducing duplicate reviews and requiring consultations with tribal and local governments.
• The changes would also bring an end to consideration of “cumulative” environmental effects from projects, and focus on reasonably foreseeable effects that have a reasonably close causal connection to the proposed federal action. To date, courts have interpreted “cumulative” environmental effects to include considering a project's impact on climate change.

Additional changes include reducing duplicative reviews in projects involving approval from multiple agencies so that one lead agency would be put in charge of overseeing all NEPA reviews, and allowing applicants to prepare their own environmental impact statement under the supervision of an agency.

The CEQ’s proposed NEPA rule changes are already generating significant backlash within the environmental community and will be subject to extensive public comment (requests for an extension to the 60-day public comment period are likely). Additionally, chances will be discussed at two public hearings currently scheduled in Denver, Colorado, and Washington, D.C. Beyond that, there will almost certainly be a number of court challenges from environmental groups and a handful of state Attorney Generals who take issue with restricting current environmental oversight of major infrastructure projects within their states. 

The Edge: Despite Intention, Proposal May Not Deliver Better Results for the Industry

 The laudable goals of this proposal are to reduce the costs and accelerate the implementation of federal projects. However, discussions with some industry insiders believe that the extended comment period followed by inevitable court challenges may have just the opposite effect.  

Such anticipated challenges to the proposed rules could add delay and uncertainty to on-going federal environmental reviews. We will continue to monitor and provide timely updates to those impacted industries.