Revisions to NEPA Proposed to Unlock American Investment

By: Kathy G. Beckett

Published: February 13, 2020

President Trump and the White House Council on Environmental Quality (CEQ) issued proposed regulations on January 10, 2020 to modify the regulatory program for the National Environmental Policy Act (“NEPA”), that requires federal agencies consider the environmental consequences of their actions when they are in the decision-making process to issue approvals, permits, or authorizations. Projects that are of a nature to require federal action must undergo an Environmental Assessment and perhaps trigger the development of an Environmental Impact Statement. Over the past forty some years, the NEPA regulatory process grew to become timeless and unwieldy as agencies, the public, and industry wrangled with the issue of environmental review of industrial development and ultimate approval for construction. President Trump framed the issue as follows, “In the past, many of America’s most critical infrastructure projects have been tied up and bogged down by an outrageously slow and burdensome federal approval process. . . These endless delays waste money, keep projects from breaking ground, and deny jobs to our nation’s incredible workers.”

This recent proposed NEPA rulemaking is noteworthy because it represents a comprehensive update that has not occurred since the initial promulgation in 1978. As stated by CEQ Chairwoman Mary Neumayr during President Trump’s press conference on January 9, 2019, “The goal of NEPA is to ensure well-informed decision-making. But the process can be unnecessarily complex, burdensome, and protracted. A lengthy process can delay or even derail important projects to modernize our nation’s infrastructure, manage our federal lands and waters, and restore our environment.”

The regulated community has generally embraced revision to the NEPA program to allow more timely processing of appropriate studies and assessments, while ensuring the protection of the environment. Increased costs for permitting and NEPA review and the unpredictability of timing for approvals, investors in economic development have become more difficult to find. As President Trump championed his desire to bring to the United States new investments, infrastructure improvements and jobs, the issue of NEPA as a barrier to economic growth became magnified. The President learned nothing of any size can be built without passing the NEPA test, but the NEPA review process is an uncertain particularly with regard to anticipated timing and cost of securing completed review.

Tom Donohue, CEO of the U.S. Chamber of Commerce issued a statement on January 10, 2020 announcing the new coalition the Chamber is leading called, Unlock American Investment, “If America is to meet its growing challenges on infrastructure, energy and the environment, then we must modernize the 40-year old NEPA process. In many cases, it takes far longer to obtain a permit than it actually takes to build one of these critical projects, and that should not be acceptable. That’s why the Chamber strongly supports the Administration’s efforts to streamline permitting processes, and why we are leading a broad coalition representing the business community and workers to support the new rule. We support NEPA’s requirement for environmental reviews and public input. But too often, the current rules are used as a tool to obstruct important projects, such as highways, bridges, public transit and even renewable energy projects. Reducing delays and uncertainties associated with infrastructure investment and related projects will allow businesses to plan and invest with confidence while enhancing economic productivity and supporting more and better-paying jobs throughout the country.”

To illustrate the level of interest in this proposal, comments submitted to the docket thus far exceed 3,600. The comment period closes on February 25, 2020.

In this proposed rule, CEQ would revise and modernize its NEPA regulations to facilitate more efficient, effective, and timely NEPA reviews by Federal agencies. The proposed updates and clarifications to its regulations are based on CEQ’s record evaluating the implementation of its NEPA regulations and on comments provided in response to the ANPRM.

The following is a summary of the CEQ proposal found at 85 Fed. Reg 1684, (January 10, 2020).

Stay informed. Sign up for our mailing lists.

Stay Informed

All of our news and resources are shared electronically. Select your preferred list(s) below.(Required)