CEQ Proposes New NEPA Regulations: More Public Engagement and More Clean Energy Projects
At a Glance
- The Council on Environmental Quality (CEQ) proposed the second phase of their National Environmental Policy Act (NEPA) regulations known as the Bipartisan Permitting Reform Implementation Rule (BPRIR) with a comment period closing on September 29, 2023.
- Renewable energy projects will benefit from the BPRIR. CEQ is decreasing the potential for renewable energy projects to need to develop environmental impact statements, as well as allowing those projects to potentially use a different NEPA process.
- CEQ proposes requiring in regulation the evaluation of climate-change-related and environmental justice impacts for the first time.
- For fossil fuel and transportation projects, agencies will need to perform additional environmental analysis, perform additional public stakeholder engagement, and likely face increased legal uncertainty and scrutiny.
Background
On July 31, 2024, the Council on Environmental Quality (CEQ) published their proposed Phase 2 of their National Environmental Policy Act (NEPA) regulations known as the Bipartisan Permitting Reform Implementation Rule (BPRIR).1 Comments are due September 29, 2023, and CEQ is holding several virtual public meetings during the public comment period.
The BPRIR builds on CEQ’s Phase 1 regulation.2
Significant Changes
Some of the significant modifications in the BPRIR are:
1. Increasing Engagement, Including Earlier in the Process and With Indigenous Populations
CEQ emphasizes increased and earlier engagement, specifically with respect to indigenous groups.
The revisions, if finalized, will provide external stakeholders additional avenues to challenge environmental documents based on how the agencies engage the public. For example, CEQ requires agencies to take into consideration “the needs of affected communities” when determining what format to use for a public hearing or public meeting.3
In addition, CEQ also removes the “exhaustion” language that was developed in the 2020 NEPA regulations, which would only allow litigation based on comments raised during the public comment process. CEQ states that the exhaustion language is unnecessary and should be left to the courts to decide.
2. Limiting Climate Change Analysis for Renewable Energy Projects
CEQ proposes to clarify that agencies should consider a project’s short-term environmental harms with respect to long-term environmental benefits. Specifically, a renewable project with short-term greenhouse gas (GHG) impacts from construction but long-term GHG reductions from the renewable project itself would not result in significant GHG emissions — thus not triggering the development of an environmental impact statement (EIS).
3. Providing a New NEPA Process for Projects That Would Address “Extreme Environmental Challenges”
In the BPRIR, CEQ allows for “innovative approaches to NEPA reviews” to address “extreme environmental challenges”4 (e.g., climate change). The alternative NEPA review process seems to allow for renewable energy projects to implement a different — and likely less burdensome and faster — process.
It will take some time for agencies to develop and implement a revised NEPA review approach, and that process will likely be challenged during the NEPA rulemaking phase and for the project itself.
4. Revising How Impacts Are Analyzed and Whether They Are Significant
The BPRIR requires for the first time in regulation an analysis of reasonably foreseeable climate change impacts, and consideration of disproportionate or adverse health and environmental effects on communities with environmental justice concerns.5
If a proposed project will have significant adverse impacts, the agency is required to develop an EIS. The BPRIR rescinds a significant portion of the 2020 NEPA regulation and increases the potential for a project to trigger the requirements for an EIS.
For example, the BPRIR requires the consideration of: the proximity to communities with environmental justice concerns; global, national, regional and local impacts; and the impact to historic or cultural resources, Tribal sacred sites, parkland, and ecologically sensitive areas.
5. Updating Interagency Coordination and Schedules for Environmental Reviews
On June 3, 2023, the Fiscal Responsibility Act (FRA) was signed into law, which included amendments to NEPA.6 The FRA amended section 102(2)(C) and added sections 102(2)(D) through (F) and sections 106 through 111 of NEPA.
The changes in interagency cooperation include codifying One Federal Decision,7 expanding the use of Categorical Exclusions (CEs) across federal agencies and setting deadlines for completion of EISs.
For More Information
Faegre Drinker continues to track changes and developments related to permitting. You may contact the author for additional information or if you are interested in commenting on CEQ’s proposed regulations.
- National Environmental Policy Act Implementing Regulations Revisions Phase 2, 88 Fed. Reg. 49924 (Jul. 31, 2023) (BPRIR).
- National Environmental Policy Act Implementing Regulations Revisions, 87 Fed. Reg. 23453 (Apr. 20, 2022).
- BPRIR, 88 Fed. Reg. at 49942/3.
- BPRIR, 88 Fed. Reg. at 49957/3.
- BPRIR, 88 Fed. Reg. at 49984 (to be codified at 40 C.F.R. 1502.16).
- Fiscal Responsibility Act of 2023, Pub. L. No. 118-5 (2023).
- Exec. Order No. 13807, 82 Fed. Reg. 40463 (Aug. 24, 2017).
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