How the Latest Executive Orders and NEPA Regulations Affect Your Projects

How the Latest Executive Orders and NEPA Regulations Affect Your Projects

The final rule issued by the Council on Environmental Quality (CEQ) last July to amend the National Environmental Policy Act (NEPA) Regulations was the first major update to the NEPA Regulations in 40 years. The Biden Administration may look to rescind and replace the new 2020 NEPA Regulations; however, these regulations are not executive orders that can be easily rescinded—they were implemented through the formal rule-making process through Congress.

Therefore, the 2020 NEPA Regulations are still in effect.

President Biden did issue Executive Order (EO) 13990 on his first day in the Oval Office, entitled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” The EO requires the rescission or replacement of guidance documents and EOs associated with NEPA.

We have been reviewing this EO to understand the changes to all of our clients’ ongoing and future projects. Rest assured that changing regulations are shared and discussed across the firm with all of our NEPA practitioners—it’s part of our quality control approach.

If you would like to learn more about the regulation changes or would like details about what this could mean for your project, reach out to your ESA project manager or Meredith Parkin.

For your information, we have summarized the EO 13990 changes below.

Updates

In June 2019, the Trump administration replaced the Obama-era Guidance on Consideration of Greenhouse Gas Emissions in NEPA reviews with the “Draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions,” 84 Fed. Reg. 30097 (June 26, 2019). This has been rescinded.

In January 2021, The Biden administration replaced it with “Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews,” 81 Fed. Reg. 51866 (August 5, 2016).

Rescinded Executive Orders

EO 13766: “Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects”

This EO aimed to fast-track review of “high priority infrastructure projects” by allowing the Chairman of CEQ to designate a project an infrastructure project as “high priority.”

EO 13807: “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects”

This EO required establishment of a single lead agency to coordinate environmental reviews and permitting of infrastructure projects more generally, known as “One Federal Decision.” Specifically, EO 13807 directed CEQ to create a list of actions aimed at reducing the timeline for environmental review. This EO also limited the length of an Environmental Impact Statement to 150 pages, but allowed up to 300 pages for “complex” matters. (NOTE:  2020 NEPA regulations still have the page and time limit requirements reflected in this EO.)

Revoked Secretarial Orders

SO 3355: “Streamlining National Environmental Policy Reviews and Implementation of Executive Order 13807, ‘Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects” 

This required an EIS in one year (from NOI to ROD) and 150 page EIS limitations.

SO 3389: “Coordinating and Clarifying National Historic Preservation Act Section 106 Reviews” (December 22, 2020)

This SO coordinated and clarified reviews under Section 106 by more fully coordinating the Section 106 process and the review process under NEPA, reducing reliance on mitigation measures that do not lessen the adverse effects of the undertaking on historic properties, such as offsite compensatory mitigation.

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