Last week, the Council on Environmental Quality (CEQ) released an initial list of actions to implement Executive Order 13807, which was intended to streamline the federal review of major projects under the National Environmental Policy Act (NEPA). The release of CEQ's list follows a recent Interior Department directive, which called for time and page limits for NEPA documents.
CEQ states that it will:
- Work with the Office of Management and Budget and the Federal Permitting Improvement Steering Council (Permitting Council) to develop a framework to implement “One Federal Decision” for each major infrastructure project.
- Coordinate with the Permitting Council, the US Department of Transportation, and the Army Corps of Engineers to identify and designate projects that may qualify as high-priority infrastructure projects, pursuant to Executive Order 13766.
- Revise existing CEQ guidance regarding establishing, applying, and revising categorical exclusions; preparing environmental assessments; improving the process for efficient and timely environmental reviews; using mitigation and monitoring measures appropriately; and facilitating environmental collaboration and conflict resolution.
- Review existing CEQ regulations implementing NEPA's procedural requirements.
- Issue additional guidance to agency heads to simplify and accelerate the NEPA process on a wide array of topics, including public involvement in the NEPA process; deference to the lead federal agency; appropriate cumulative impacts analysis methodologies; sources of information that may be relied upon in analyzing impacts; and reliance on previously conducted state, local, and tribal environmental analyses.
- Convene an interagency working group to review agencies' NEPA regulations and policies, understand impediments to streamlining environmental reviews, and identify agencies that require an action plan to address any impediments.
These actions are designed to advance the Administration's ambitious goals for streamlining and accelerating environmental reviews of major infrastructure projects. As with the Executive Order, however, the effectiveness of CEQ's actions will depend on the details of how they are implemented by each agency, and on the frameworks and guidance that result. In addition, as with the Interior Department's directive, strict adherence to any modified CEQ and agency regulations and guidance may lead to an uptick in NEPA-related litigation. Challenges will likely be brought both to any modification of regulations themselves and to project-specific decisions made in reliance on those modified regulations.
Many of the actions on CEQ's initial list will take significant time to implement, minimizing the risk of immediate impacts on individual projects. In particular, anticipated legal challenges (among other factors) are likely to delay any regulatory reforms in taking effect. The current absence of a permanent CEQ chair could further postpone the implementation of these reforms. There are, however, several listed actions that could impact pending and new projects in the shorter term, including the designation of projects as “high priority,” which will be managed under Title 41 of the Fixing America's Surface Transportation Act (FAST-41), and the implementation of One Federal Decision for infrastructure projects.