The Council on Environmental Quality (CEQ) has just released the text of a final rule significantly amending its National Environmental Policy Act (NEPA) regulations, which are binding on all federal agencies.  Intended to streamline environmental review processes, the final rule will, among other things:

• Remove previous requirements that federal agencies consider the cumulative environmental impacts of their actions – a change likely to limit NEPA analysis of climate change
• Create new exemptions for private projects with limited federal funding and/or involvement
• Limit the extent to which federal agencies must consider alternatives to their proposed actions
• Substantively amend the regulatory definition of “significant” impacts that require a comprehensive Environmental Impact Statement
• Establish presumptive time limits of 1 year for Environmental Assessments and 2 years for Environmental Impact Statements

These changes, and others, create both immediate challenges and long-term opportunities.  And this strategic complexity is heightened by three areas of ongoing uncertainty.  First, although the effective date of the final rule remains somewhat unclear, it appears flexible enough to embrace ongoing environmental reviews.  Second, federal agencies are required to maintain their own NEPA procedures, and both the timing and substance of agency-specific responses to CEQ’s final rule remain to be determined.  Third, the amendments will be immediately challenged in multiple federal courts, and some may be invalidated.  Each of these three factors should be carefully considered in deciding whether, when, and how to address the final rule in a project-specific context.

In the coming days, a more detailed summary of the final rule will be posted to our website.  In the meantime, we would welcome the opportunity to discuss any questions you may have about its potential impacts on upcoming or ongoing projects.  Please contact Peter Kirsch, Katie van Heuven, or Matthew Adams for more information.