Diving into Phase 2 NEPA Updates

The White House Council on Environmental Quality (CEQ) recently finalized the “Bipartisan Permitting Reform Implementation Rule,” which will become effective on July 1, 2024.

Coming on the heels of the Phase 1 revisions released in 2022, these Phase 2 changes will revise some of the procedural provisions of the National Environmental Policy Act (NEPA). The new rule will help accelerate environmental reviews while ensuring strong environmental protections, robust community engagement, and better coordination with states, Tribes, and local governments. CEQ asserts that the final rule “clarifies that agencies should consider the effects of climate change in environmental review and encourage identification of reasonable alternatives that will mitigate climate impacts.”

Individual federal agencies will have until July 1, 2025, to revise agency-specific regulations.

Phase 2 Changes

These changes generally fall into three categories, and here we’ll take you through the most significant changes and explain how they might affect your projects moving forward. You can access the full text from CEQ here.

Regulatory changes to improve NEPA efficiency and add flexibility

• 1501.10: Revises how the two-year Environmental Impact Statement (EIS) and one-year Environmental Assessment (EA) timelines are measured, subject to potential extensions.
• 1501.4: Promotes more efficient development of categorical exclusions (CEs) as part of planning processes.
• 1501.5: Provides clarity to the regulations regarding decisions to supplement EAs.
• 1501.7: Adds caveats that the lead and cooperating agencies shall, to the extent practicable, issue joint Records of Decision and Findings of No Significant Impact.
• 1501.11: Promotes the use of programmatic environmental documents and tiering.
• 1606.3: Provides clearer direction on agency adoption of another agency’s EIS, EA, or CE.

Generally, these changes could have the effect of expediting the NEPA process.

Regulatory changes to promote better environmental outcomes

• 1501.3: Restores and updates agencies’ obligation to evaluate context and intensity factors when making a determination of significance.
• 1501.3: Clarifies the requirement that agencies consider the duration of effects of a proposed action and whether the effects may be adverse at some points in time and beneficial at others.
• Various NEPA citations: Emphasizes that agencies should identify high-quality and accurate information early in the process and fully disclose when relevant information is incomplete or unavailable.
• 1502.16: Highlights climate change as an important consideration when evaluating action alternatives.
• 1502.16: Explicitly requires an analysis of any adverse environmental effects of the no-action alternative in the “environmental consequences” section.
• 1502.14: Requires the identification of the environmentally preferred alternative in EISs, instead of solely in Records of Decision.

These changes could potentially require greater analyses in the development of NEPA documents. However, clarification of NEPA definitions and consistent application of impact analysis approaches may help to eliminate some confusion in the NEPA process.

Regulatory changes to prioritize meaningful public engagement, including advancing environmental justice and respecting Tribal sovereignty

• 1502.16: Requires discussion of reasonably foreseeable disproportionate and adverse human health and environmental effects on communities with environmental justice concerns.
• 1505.3: Encourages agencies to mitigate human health and environmental effects that disproportionally affect communities with environmental justice concerns
• 1501.9: Encourages agencies to make draft environmental documents available to the public at least 15 days in advance of public meetings.

These changes could result in additional time for public engagement and assessment during the NEPA process but emphasize environmental justice concerns and greater public outreach.

What You Need to Know

Understanding and navigating NEPA has been a specialty of ESA since NEPA was enacted in 1970. As we continue to see changes in the regulations, we are tracking all updates, and we have a full digest to share. If you would like a copy or want to be connected with someone who can answer your NEPA questions, please reach out to Meredith Parkin.