Last week, several agencies released updated National Environmental Policy Act (NEPA) implementing procedures. Following the Council on Environmental Quality’s rescission of the government-wide procedures, the Seven Counties Infrastructure Coalition decision from the Supreme Court, and continuing deregulatory policy directives from the President, agencies were tasked with updating their NEPA procedures. Although it will take a little time to review and thoroughly analyze each agency’s updates, there are a few overarching themes to be aware of:
- Reinforcing NEPA is a Procedural Statute: Language from the Seven Counties Infrastructure Coalition Supreme Court decision is prominent in the updates, particularly the description of NEPA as a procedural statute with deference granted to agencies to define the scope of analysis.
- Definition of Major Federal Action: Agencies are clarifying the agency-specific conditions to meet the definition of a “major federal action,” which is then subject to NEPA. Some agencies appear to introduce some flexibility to allow for greater discretion on determining NEPA applicability to certain actions.
- Adhering to Time and Page Limits: Procedures now reflect page limits and deadlines to complete NEPA as codified in the 2023 Fiscal Responsibility Act (75 pages for an EA completed within 1 year, and 150 pages for an EIS completed within 2 years).
- Emphasis on Emergency Response Procedures: There is greater emphasis on emergency response procedures—a reflection of this administration’s penchant for declaring national emergencies, which would provide the exigent circumstances necessary to accelerate NEPA.
- Use of Categorical Exclusions: Categorical exclusions and the process for adopting another agency’s categorical exclusion are addressed in the updates as well, signaling the push to leverage that mechanism to satisfy NEPA for more projects.
- NEPA “Guidance” vs. Regulations: Some agencies are moving away from NEPA regulations in order to remain flexible in responding to changing direction from Congress, the courts, and executive priorities. As such, the updated NEPA procedures will typically be “guidance,” meaning that they do not have the force of law and will guide internal agency compliance with NEPA.
We’ve linked updated agency procedures with accompanying announcements below (note that this list is not exhaustive and reflects agencies with a primary role in infrastructure development):
Department of Agriculture (USDA)
USDA announced the rollback of “overly burdensome environmental regulations to unleash American innovation” by rescinding seven agency-specific regulations and issuing a single set of department-wide NEPA regulations. The interim final rule will “revise, move and republish, or remove portions of USDA’s existing regulations for implementing” NEPA.
Department of Commerce (DOC)
DOC did not make a public statement but did publish a notice of availability with request for comments on the updated Administrative Order 216-6, “Implementing the National Environmental Policy Act.” The National Oceanic and Atmospheric Administration (NOAA) also updated its NEPA procedures as contained in the Companion Manual to NOAA Administrative Order 216-6A. As part of this process, NOAA has also proposed revisions to existing categorical exclusions.
Department of Defense (DoD)
DoD announced its efforts to “streamline environmental reviews to accelerate infrastructure projects” by creating department-wide procedures and rescinding branch-specific procedures for the U.S. Air Force, Army, and Navy. These department-wide procedures apply to the U.S. Army Corps of Engineers Civil Works Division, but the Corps of Engineers Civil Works Regulatory Program will retain updated regulations, which now include requests for permission under Section 14 of the Rivers and Harbors Act of 1899 (commonly referred to as Section 408 permits).
Department of Energy (DOE)
DOE announced its updated procedures “to end permitting paralysis and unleash American energy.” DOE has published an interim final rule that rescinds the majority of its NEPA implementing procedures found in regulations and replaces them with department-wide guidance.
Department of the Interior (DOI)
DOI announced its updated procedures, framing it as a “…historic effort to fix America’s broken permitting system.” The interim final rule will partially rescind and make necessary targeted updates to its implementing regulations at 43 CFR part 46. DOI also issued an updated 516 DM1 – Handbook of NEPA Implementing Procedures.
Department of Transportation (DOT)
DOT announced “sweeping updates to NEPA at USDOT to fast track roads, bridges, & other key infrastructure.” These changes are captured in an updated department-wide Order 5610.1D; updated regulatory procedures noticed in an interim final rule for the Federal Highway Administration, Federal Transit Administration, and the Federal Railroad Administration found at 23 CFR 771; and updated procedures for the Federal Aviation Administration in Order 1050.1G.
Federal Energy Regulatory Commission
Federal Energy Regulatory Commission announced revised NEPA procedures to make permitting more efficient with an updated Staff Guidance Manual on Implementation of the National Environmental Policy Act.
Additional analysis will follow in the coming weeks. Please be sure to register for the National Association of Environmental Professionals webinar Wednesday, July 9, on Navigating the Future of Environmental Policy, where ESA’s Federal Strategy Director will join the discussion with some initial reactions to these updated NEPA procedures, permitting reform in Congress, and what comes next in this space. And stay tuned for a webinar from ESA’s federal strategy team analyzing the major changes in NEPA and the Endangered Species Act, among others.
