White House at NightThe Trump administration recently finalized updates to regulations for environmental impact review of large projects under the National Environmental Policy Act (NEPA).  NEPA was originally enacted 50 years ago to reorient federal agencies to consider the environmental impact of projects.  It generally requires federal agencies to consider environmental effects of proposed projects before they are approved. It is a procedural statute and does not require project modification.

NEPA is implemented by the White House Council in Environmental Quality (CEQ), and CEQ last made significant updates to the regulations in 1986.  This newest round of regulation aims to “update, modernize, and clarify the regulations to facilitate more efficient, effective, and timely NEPA reviews by Federal agencies in connection with proposals for agency action.”  Among other changes, the revised regulations impose a presumptive time limits and page limits on certain NEPA processes, including Environmental Impact Statements (EISs) and Environmental Assessments (EAs), and permit agencies to borrow “categorical exclusions” from other agencies in order to streamline projects.

The CEQ’s final rule promises the following additional benefits from the updates:

  • Improve inter-agency coordination in the environmental review process;
  • Promoting earlier public involvement;
  • Increase transparency, and
  • Enhance the participation of States, Tribes, and localities.

Critics, however, argue that the revised rules undermines the purpose of NEPA and fail to give all participants an adequate voice.  The National Resources Defense Council has already promised to challenge the “illegal” regulations.  The Trump administration’s changes to the rules could play a role in November’s election, including mobilizing environmental groups.  Indeed, a different administration could eliminate the NEPA rollback with a majority vote in Congress and the president’s approval.

Squire Patton Boggs will continue to monitor this regulatory change and the resulting litigation.