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NEPA Overhaul Aims to Speed Up Environmental Reviews

Posted on 7/27/2020 by Roger Marks and Anthony Cardno, CHMM

Signed into law on January 1, 1970, the National Environmental Policy Act (NEPA) requires Federal agencies  of the US government to assess the environmental impact of their activities before issuing permits, adopting federal land management actions, or building highways or other publicly owned projects.  

The 1970 law created the Council on Environmental Quality (CEQ), which wrote the first regulations to implement NEPA in 1978 (found in 40 CFR 1500--1508). 

What’s New in the Final Rule?

Each update in the NEPA Final Rule fits into one of three categories, more or less:
  • Restructuring rules that re-organize existing environmental regulations to be easier to read, with less repetition and improved grammar.
  • Changes to definitions that clarify the meaning of regulatory terms, add new definitions, and strike outdated ones
  • “Actual new stuff” that substantively changes or adds to facility’s environmental responsibilities under NEPA.
Read on for more insight about what’s in the Final Rule. Read more about NEPA on EPA’s website.

Restructuring Rules in NEPA

The 1978 NEPA regulations were dense, tangled, repetitive, endlessly self-referential, and, simply put, very hard to understand and apply.   

The new Final Rule re-organizes sections of the regulations to provide a more logical “flow,” group connected concepts together, and limit repetition. Plus (grammarians rejoice!) they changed occurrences of passive voice to active voice to make the regulations easier to read.

New and Updated NEPA Definitions  

A set of clear definitions is the backbone of every regulatory program. As EHS professionals know, words often take on different meanings depending on the set of regulations you’re looking at.

To prevent confusion, the meaning of words should be clear and consistent across the full set of rules.
The Final Rule adds and clarifies definitions found in 40 CFR 1508 for a list of terms, among them "Authorization," "Lead Agency." "Participating Agency,"  “Reasonably Foreseeable,” “Significantly,” and many others.  

New and Revised NEPA Requirements

This rule goes beyond regulatory housekeeping to include substantial changes and updates to the requirements for Federal agencies.   

The goal here is to shorten the amount of time it takes to complete legally required environmental reviews before a government project—like new highway construction, for example—can begin.

To that end, the Final Rule:

Sets page and time limits for required environmental reviews, including:
  • Environmental Assessments (EA)
  • Environmental Impact Statements (EIS)
  • Conditional exclusions; and
  • Findings of No Significant Impact
Streamlines the way different Federal agencies work with each other on single or related projects.

Adds standards by which “interested parties” like other Federal agencies, state and tribal governments, and private individuals and businesses can offer input during various environmental review processes.

Adds requirements for agencies that rely on third parties or contractors to write/perform environmental reviews like EAs, EISs, etc.  

For more details, read the Final Rule in full in the July 16 Federal Register

Before this month's Final Rule, the NEPA regulations had not changed since 1978. Still, NEPA kept the US legal system busy in the forty-plus years since it became law. The Supreme Court has issued seventeen decisions concerning the law in that time, and US district and appellate courts interpret NEPA more than one hundred times per year, according to the preamble to the Final Rule.  

Earlier efforts to modernize and simplify NEPA include presidential memoranda and extensive guidance.

Tags: environmental compliance, environmental review, NEPA, permits

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