Understanding NEPA Regulations and CEQ Authority

NEPA - Where Are We Now and Where Are We Going? ODOT/ACEC Ohio Environmental Summit James M. Auslander May 13, 2025

Summary NEPA requires federal agencies to consider environmental impacts of their discretionary actions before acting More informed decisions Public transparency Broad NEPA trigger: Proposed major Federal actions significantly affecting the quality of the human environment Different levels of detail for NEPA reviews NEPA does not require adoption of least environmentally harmful alternative P in NEPA stands for Policy not Protection (But other statutes might require substantive protections) 2

Current NEPA Authorities Statute: 42 U.S.C. 4321 to 4370h Regulations implementing NEPA Council on Environmental Quality ( CEQ ) 40 C.F.R. Parts 1500-1508 CEQ Rulemaking Website: https://ceq.doe.gov/laws-regulations/regulations.html Departments and agencies also have own NEPA regs (for now) Various CEQ and agency guidance E.g., active CEQ Guidance: https://ceq.doe.gov/guidance/guidance.html State little NEPA laws, too (esp. CA CEQA) Caselaw 3

CEQ Overview Created by 1970 NEPA statute Exists within White House Vested with advisory role to President First issued guidelines per Nixon EO 11514 Early court cases affirmed CEQ advisory role 4

CEQ Regulatory Shift Carter EO 11991 directed CEQ to issue regulations 1978 NEPA regulations Purported to bind all federal agencies Courts largely assumed CEQ authority and deferred to CEQ interpretations Regs undisturbed for nearly 40 years 2020 regulations 2022 regulations 2024 regulations 5

Courts Question CEQ Authority Marin Audubon Soc y v. FAA Vacated national parks overflight plan Found improper use of categorical exclusion Held CEQ lacks rulemaking authority State of Iowa v. CEQ Vacated 2024 regulations (thereby revived prior CEQ regulations) Also held CEQ lacks rulemaking authority Found 2024 regulations also ultra vires or arbitrary and capricious Seven County Infrastructure Coalition v. Eagle County (pending) 6

Legislative and Executive Actions 2023 Fiscal Responsibility Act First changes in 50+ years to NEPA Overall aim to clarify and expedite NEPA reviews Trump EO 14154, Unleashing American Energy Revokes Carter EO on NEPA regulations Directs CEQ to: Within 30 days (Feb 19), propose rescinding CEQ s NEPA regulations Within 30 days (Feb 19), provide guidance on implementing NEPA Convene a working group to coordinate the revision of agency-level implementing regulations for consistency 7

CEQ Interim Final Rule Feb 16 (effective April 11) CEQ issued an interim final rule, titled Removal of National Environmental Policy Act Implementing Regulations Rescinds all CEQ regulations (40 CFR 1500-1508) Relies heavily on Trump EO and its rescission of Carter EO Says CEQ may lack authority to issue rules absent Carter EO Asserts no reliance interests on CEQ regulations Claimed justifications for IFR route: Good cause based on Trump EO deadlines Good cause to avoid agency confusion given the recent vacatur of CEQ s 2024 Rule Alternately, a procedural or interpretive rule 30-day comment period (and received many comments), but asserted that comments could not alter the President s decision, and that will not consider comments on contents of CEQ regulations 8

CEQ 2/19/2025 Memorandum on Interagency NEPA Implementation Non-binding guidance The contents of this guidance do not have the force and effect of law . This guidance does not establish new policy requirements. Directs interim use of 2020 CEQ regulations 12-month deadline for agencies to complete the revision of their procedures CEQ-hosted monthly meetings with agencies Guidance for agency NEPA procedures: Address FRA-added provisions, e.g., deadlines/page limits, threshold NEPA applicability determinations, third- party preparation Consider adverse effects of no-action alternative Carefully consider a threshold of Federal funding to trigger NEPA Do not expressly or always consider cumulative effects all considered effects of the proposed action must be reasonably foreseeable Do not include an environmental justice analysis, to the extent that such exclusion is consistent with other applicable law 9

Further CEQ Guidance Rather than revising individual agency NEPA regulations, focus now appears to be on replacing them with nonbinding guidance CEQ template / framework key features: Largely parallels CEQ 2020 rule, including key definitions of effects and reasonably foreseeable Aims to avoid APA notice-and-comment for adoption Publishes NEPA reviews even if not totally complete, with certification that good faith effort to fulfill NEPA s requirements within the Congressional timeline, that such effort is substantially complete, and not fundamentally in breach of the spirit of NEPA s requirements Relatedly further limits grounds for extending NEPA deadlines Abbreviates or omits public comment opportunities, including on a draft EIS Expands exclusions from major federal action Bars new research unless essential to evaluating alternatives and the cost and time of obtaining it are not unreasonable Express consideration of employment effects Allows other requirements to satisfy NEPA for rulemakings Broadens instances of a single environmental document for NEPA and other purposes Invites further provisions for emergencies 10

Interior NEPA Guidance for National Energy Emergency Executive Order (EO) 14156, Declaring a National Energy Emergency Interior NEPA alternate procedures Applicant must affirmatively elect coverage EA/EIS timeframes of approximately 14/28 days from complete application Presumes agency preparation of NEPA document (but implicitly could accommodate applicant-prepared draft) No required public comment on EA No required draft EIS or public comment thereon; can solicit 10-day public comment and public meeting in NOI for EIS prior to publication of EIS Analogous Interior alternate procedures for ESA, NHPA Section 106 11

Technology and NEPA 2023 FRA called for E-NEPA advancements April 15, 2025 Presidential Memorandum directs technology modernization for environmental reviews Issue Permitting Technology Action Plan in 45 days Adopt/implement CEQ data and technology standard and minimum functional requirements in 90 days CEQ interagency Permitting Innovation Center in 15 days 12

Key Open Questions Status of pre-2024 CEQ regulations and guidance More CEQ actions forthcoming Likely more litigation of same Status of individual agency NEPA regulations References to/incorporation of CEQ regulations CEs particularly important Consistency of agency adherence to guidance Consistency of courts deference to guidance Offsetting forces of streamlining vs. uncertainty No express accounting for NEPA assignment states 13

Main Takeaways NEPA statute (as amended) remains intact Agencies retain discretion over scope of NEPA reviews for their proposed actions Courts remain arbiters of NEPA adequacy Completed NEPA reviews likely unaffected NEPA reviews that would be adequate under CEQ regulations likely remain adequate under NEPA More litigation inevitable Watch this space for more CEQ, agency, Congress, court actions 14

NEPA/Related Questions? Jamie Auslander Beveridge & Diamond, P.C. (202) 789-6009 jauslander@bdlaw.com 15