To Combine or Not to Combine, That is the Question

When a project requires analysis under both the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA), agencies and applicants can develop the required documentation either separately or combined into a single document, such as an Environmental Impact Statement (EIS)/Environmental Impact Report (EIR).

A combined EIS/EIR allows NEPA and CEQA lead agencies to agree on thresholds of significance, impact methodology, and mitigation measures before publicly releasing the document. Conversely, when state and federal agencies develop separate NEPA/CEQA documents, those documents may contain conflicting information or even incompatible decisions from the lead agencies, unless there is close coordination between the two.

In prior years, NEPA and CEQA practitioners referred to the federal Council on Environmental Quality (CEQ) handbook titled “NEPA and CEQA: Integrating Federal and State Environmental Reviews,” which provided guidance on how to efficiently combine the NEPA and CEQA processes to streamline environmental reviews and reduce duplication. 

However, with the latest changes to NEPA (see our blogs here and here), including the rescission of CEQ’s NEPA implementing regulations through Executive Order 14154, many of us are now asking the fundamental question: Should we combine NEPA and CEQA documents, and, if so, how?

To address this, we must first examine the following key differences between NEPA and CEQA when developing a combined document in this new NEPA landscape:

• Resource types: NEPA requires agencies to consider impacts on “the human environment,” which includes economic and social effects when they are interrelated with natural or physical environmental effects (generally captured in the NEPA document under “socioeconomic” effects). CEQA does not require a socioeconomic analysis. Conversely, CEQA requires an evaluation of impacts on certain resource areas, such as wildfire risks, which NEPA may not require as standalone topics. Furthermore, some resources analyzed under both frameworks are defined very differently in each.
• Effects analysis: NEPA requires an analysis of “reasonably foreseeable environmental effects” but doesn’t specifically require both direct and indirect effects analysis of the proposed action, whereas CEQA does. This can result in a different range of impact analysis between CEQA and NEPA documents.
• Use of significance thresholds: NEPA does not have standardized impact significance thresholds, and until the rescission of the CEQ implementing regulations, NEPA evaluated significance based on the context and significance of an effect. CEQA generally follows Appendix G of the CEQA Guidelines, which establishes significance thresholds for certain impacts. Therefore, the federal lead agency may find an impact to be significant when the CEQA lead agency does not, or vice versa.
• Assessment of alternatives: NEPA requires that agencies analyze alternatives at an equal level of detail to determine the preferred alternative, whereas CEQA requires a comparative analysis of alternatives to the proposed project.
• Mitigation measures: NEPA doesn’t require mitigation measures to reduce impacts. However, many NEPA documents include “environmental commitments” or “best management practices” (BMPs) as part of the proposed action (e.g., to meet permit conditions). CEQA may include BMPs for the proposed project but requires the lead agency to adopt all feasible mitigation measures and track them using the mitigation monitoring and reporting program during project implementation.
• Document type: The proposed action/project may require different levels of NEPA and CEQA documentation. For example, a project may only require an Environmental Assessment (EA), whereby a Finding of No Significant Impact is appropriate under NEPA. However, the same project (due to differences in impact thresholds, etc.) may require a full EIR for CEQA compliance due to significant and unavoidable impacts.
• Page limits and time limits: NEPA requires EAs to be completed within 1 year and be fewer than 75 pages, and EISs to be completed within 2 years and be fewer than 150 pages (or 300 pages for complex projects). Although the CEQA Guidelines also have page limits for EIRs (150 for normal and 300 for unusual scope or complexity), the page limits are not mandatory, and agencies often include extensive detail to protect against potential litigation.
• NEPA vs. CEQA review and schedule: Each lead agency may vary in their ability to review and approve documents and adhere to a strict schedule. For example, with the reduction of the federal workforce, the NEPA review could proceed more slowly than the CEQA review, depending on the availability of the lead agency staff.

Creative solutions for combining documents include developing an EIR with an EA as an appendix, or developing an EA that incorporates by reference information from a publicly released EIR (or vice versa).

Deciding whether to combine NEPA and CEQA documents should be determined on a project-specific basis by both the NEPA and CEQA lead agencies. With the current level of change in the federal government and the distinct differences between the NEPA and CEQA processes, we are increasingly recommending separating the documents. Each agency must weigh the benefits of creating a combined NEPA and CEQA document. These benefits include agreement between lead agencies on thresholds of significance, impact methodology, and mitigation measures before publicly releasing the document. However, agencies must also consider the challenges, which include different thresholds of significance, page and time limits, and lead agency availability to review documents. Additionally, creative solutions for combining documents, such as including an EA as an appendix to an EIR, may be recommended. Regardless of the approach, close coordination between the two lead agencies is essential.

To learn more about ESA’s coverage of the ongoing federal regulation changes related to environmental permitting, be sure to check out our blog or reach out directly to Meredith Parkin for more information.