As previously described here, on July 16, 2020, the Council on Environmental Quality (CEQ) issued the first major revisions to its National Environmental Policy Act (NEPA) regulations since 1978, which become effective on September 14, 2020. The revised regulations have received much attention, ranging from enthusiastic support to intense opposition. This has led to considerable rhetoric, leaving many in the regulated community scratching their heads about how much has actually changed and how to apply the revised regulations to current and future federal agency authorizations. In this article, we answer some of the most pressing questions about the revised CEQ regulations.
1. What are the most significant changes?
Elimination of Cumulative Impacts. One of the largest departures from previous practice that has garnered the most opposition is the elimination of cumulative impacts from the scope of the effects analysis. The final version of the revised regulations dropped the language in the proposed revisions that expressly stated that an analysis of cumulative impacts is not required. But the revised regulations nonetheless repeal the prior definition of "cumulative effects" and limit the consideration of effects to those "that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives."1 This change has already been targeted in litigation against the rules themselves2 and likely will be included in as-applied challenges to projects in which the agency did not analyze cumulative effects.
Definition of Major Federal Action. The new regulations significantly rewrite the definition of "major Federal action."3 The key changes are (1) elimination of the current language that includes failure to act, (2) express exclusion of non-discretionary actions, and (3) recognition that major Federal action does not include "[n]on-Federal projects with minimal Federal funding or minimal Federal involvement where the agency cannot control the outcome of the project."4
The first change is consistent with the concept that NEPA applies to proposed actions for which alternatives can be considered.5 When an agency fails to act, there is no proposed action for which alternatives could be evaluated.6 Thus, the elimination of non-discretionary actions is consistent with well-established NEPA case law, as well as the purpose of NEPA, as an environmental analysis provides little value if the agencies have no discretion to take any different action as a result of that analysis.7
The third change appears to expand upon what is commonly referred to as the "small handles" problem, where a federal agency has authority over a small portion of a much larger project.8 The scope of the NEPA analysis in such a situation has been the subject of numerous court decisions, with inconsistent outcomes. The exclusion from major federal actions of projects where the agency cannot control the outcome may help address one aspect of the "small handles" question, though considerable debate likely will persist as to the appropriate scope of the analysis where the agency decision can influence the non-federal aspects of the project.
Significance Thresholds. Agencies must prepare an environmental impact statement (EIS) when impacts of the proposed agency action are expected to be significant. The previous CEQ regulations required consideration of context and ten intensity factors to weigh in determining whether impacts are significant.9 These intensity factors include consideration of, for example, the degree to which the action may affect threatened or endangered species, cultural resources, and unique geographic areas (e.g., park lands, wild and scenic rivers, or ecologically critical areas).10 Whether the impacts of a proposed action meet the significance threshold previously has been the frequent target of project opponents.
The revised regulations retain the concepts of context and intensity but refer to them as "the potentially affected environment" and the "degree of the effects of the action," respectively.11 CEQ has eliminated seven of ten intensity factors, retaining only a consideration of beneficial and adverse effects; effects to public health and safety; and effects that would violate federal, state, tribal, or local law protecting the environment.12 Because the significance threshold is such a key part of NEPA compliance, these revisions have already been the subject of facial challenges.13
Limitation of the Alternatives Analysis. The revised regulations constrain the range of alternatives that needs to be considered. While the previous regulations required agencies to "[r]igorously explore and objectively evaluate all reasonable alternatives" in an EIS,14 the revised regulations state that agencies shall "[e]valuate reasonable alternatives to the proposed action[.]" 15 The preamble explains that it is CEQ's view that "NEPA's policy goals are satisfied when an agency analyzes reasonable alternatives, and that an EIS need not include every available alternative where the consideration of a spectrum of alternatives allows for the selection of any alternative within that spectrum."16
In addition, CEQ has eliminated the statement in the previous regulations that agencies should include reasonable alternatives not within the jurisdiction of the lead agency.17 And it has included a new definition of "reasonable alternatives," which confirms that, to be reasonable, an alternative must be "technically and economically feasible, meet the purpose and need for the proposed action, and, where applicable, meet the goals of the applicant."18 The inclusion of the applicant's goals is an important change that confirms what many courts had already concluded—agencies must take into account the goals of project applicants in determining what constitutes a reasonable alternative.19
While the revised regulations do not specifically include new provisions or changes regarding the range of alternatives required in an environmental assessment (EA), the preamble confirms that "[r]equirements for documenting the proposed action and alternatives in an EA continue to be more limited than EIS requirements."20 The preamble also explains that an "agency does not need to include a detailed discussion of each alternative in an EA, nor does it need to include any detailed discussion of alternatives that it eliminated from study."21
It remains to be seen what impact this change will have on agency practice and litigation outcomes. For EAs, the number of alternatives analyzed was already generally more limited than in EISs, so there may be little change in that context. For EISs, agencies may be hesitant to substantially limit their alternatives analyses due to potential legal challenges. However, with the new page limits, discussed further below, agencies may choose to relegate to an appendix some or all of their justification for rejecting certain alternatives without detailed analysis. As for litigation outcomes, legal challenges to NEPA analyses often include allegations that the agency considered an insufficient range of alternatives, the resolution of...
