Our Insights

8 Things You Need to Know About the NEPA Modernization Rule

August 4, 2020

by Linda Erdmann
Senior Project Manager, Environmental Division

The Council on Environmental Quality (CEQ) published a final rule on July 16, 2020, to “Update its Regulations Implementing the Procedural Provisions of the National Environmental Policy Act (NEPA).” Scheduled to go into effect on September 14, 2020, this update marks the first time since 1978 that CEQ has comprehensively updated its NEPA regulations.

The final rule aims to modernize and clarify the CEQ regulations to facilitate more efficient, effective, predictable and timely NEPA reviews for the development of major infrastructure projects.

The final rule includes the following key differences from traditional NEPA guidance.

1. Imposes restrictions on time and page length

Both Environmental Assessments (EAs) and Environmental Impact Statement (EISs) are subject to limits for preparation time and overall document length.

Senior agency officials have the ability to modify time and page limits, if needed.

2. Allows applicant-prepared EAs and EISs

Under the new rule, project applicants may prepare both EAs and EISs, though they must sign a statement disclosing any financial interest in a proposed action. Agencies must still provide:

3. Coordinates with the One Federal Decision policy

The final rule adopts the One Federal Decision policy to improve interagency coordination for NEPA reviews. It also directs the lead agency in a multi-agency review to:

4. Expands use of tiering by agencies

Agencies are encouraged to “tier” from existing federal, state, tribal and local environmental analyses, studies and decisions for coverage of general matters in a broad analysis by reference. The tiering provision allows for:

5. Requires more specificity in public comments

Public comments under the final rule will change in two main ways. First, NOIs must request comments on alternatives and their impacts.

Secondly, the level of specificity in public comments must:

6. Eliminates independent cumulative impacts analysis

Cumulative impacts are no longer an independent category of impacts that agencies must analyze. Instead, such impacts may be addressed as part of the affected environment discussion.

This provision directs agencies to describe the environment of the area(s) to be affected and include “the reasonably foreseeable environmental trends and planned actions of the area(s).”

7. Revises analysis for significant effects

The new rule eliminates references to “direct,” “indirect” and “cumulative” effects and requires agencies to analyze “the potentially affected environment and degree of the effects of the action.” With this change, agencies must now consider:

8. Focuses on causes vs. types of effects

Effects, under the new rule, are defined as “reasonably foreseeable” proposed actions or alternatives that may cause changes to the human environment and have a “reasonably close” causal relationship to the proposed action or alternatives.

The new rule specifies effects that should not be considered, including those that are:

It also specifies that “but for” causation (i.e., but for action a, result b would not have happened) is now considered insufficient.

Next Steps for NEPA Modernization

Federal agencies have no more than one year following September 14, 2020, to develop or revise proposed procedures to implement the new regulations. The rule has generated substantial controversy and legal challenges are likely to follow.

POWER’s NEPA practitioners will be closely following this rule and its impact to energy infrastructure projects in the U.S.

About the Author:

Linda has more than 24 years of experience in environmental consulting and project management for private industry, federal and municipal agencies and non-governmental organizations. With an interdisciplinary background in natural resource management, she has skillfully addressed multiple land use and management issues. Linda has experience in all phases of project management with a focused expertise in NEPA, CWA, ESA and other environmental regulations. She is experienced at coordinating complex projects with government agencies and organizations, facilitating meetings and communicating scientific concepts to technical and non-technical audiences. Questions for Linda? Send her an email at linda.erdmann@powereng.com.