On 29 June 2021, the Council on Environmental Quality (CEQ) published an interim final rule extending the deadline by two years for federal agencies to implement the revised National Environmental Policy Act (NEPA) regulations promulgated by the Trump administration in July 2020 (2020 Rule). The move signals forthcoming substantive NEPA reform over the next two years, but offers little certainty in the short term for agencies and project developers currently undergoing NEPA review in a rapidly changing regulatory environment.
The 2020 Rule directed agencies to adopt updated agency-specific NEPA regulations by 14 September 2021. The new deadline under the interim final rule is 14 September 2023. This marks the first concrete step in the Biden administration’s effort to amend or replace the 2020 Rule over the next two years. The interim final rule itself states that “CEQ is engaged in an ongoing and comprehensive review of the 2020 Rule,” that the agency has “substantial concerns about the legality of the 2020 Rule [and] the process that produced it,” and that it “plans to address those concerns through further rulemaking.” Extending the timeline for agencies to implement the 2020 Rule will “allow Federal agencies to avoid wasting resources developing procedures based upon regulations that CEQ may repeal or substantially amend.” In other words, federal agencies can wait until CEQ promulgates substantive changes to the 2020 Rule before making corresponding updates to their own regulations, suggesting that further changes to the 2020 Rule itself are forthcoming in the next two years.
While the final interim rule offers some comfort for developers of projects currently undergoing NEPA review, it still leaves a large degree of uncertainty with respect to project-specific NEPA compliance. With the previous regulatory deadline of September 2021 fast approaching, agencies, project applicants, and consultants preparing Environmental Assessments and Environmental Impact Statements were faced with the hard choice of how to observe the 2020 Rule and the forthcoming agency-specific updates required to implement it when the 2020 Rule is highly likely to be struck down or replaced at least in part in the near future. By extending the deadline for two years, CEQ has signaled to federal agencies that they should hold off on preparing their implementing guidance until CEQ has promulgated substantive revisions to the 2020 Rule. But that still leaves a lot of uncertainty as to how to navigate a shifting regulatory landscape. Bell Kearns recently charted a path that could allow for dual compliance with the 2020 Rule and the stricter regulations that preceded it. This interpretation remains relevant after CEQ’s interim final rule.
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The information in this article is provided for informational purposes only. You should not rely on any information from this article without first obtaining the advice of an attorney who is qualified in the area of NEPA law and fully informed of the facts of your situation.