In 2018, the Council on Environmental Quality (CEQ) announced its intentions to revisit and revise its 40-year-old NEPA regulations, following Pres. Donald Trump’s call in Executive Order No. 13807 to modernize the environmental review and authorization process. CEQ issued an advanced notice of proposed rulemaking last June and is now expected to send its proposal to the White House shortly.
In this month’s featured ELR article, Proposed Revisions to Improve and Modernize CEQ’s NEPA Regulations, Lance D. Wood, Senior Counsel for Environmental Law and Regulatory Programs for the U.S. Army Corps of Engineers, gives his own take on reforming the NEPA regulations. Based on his long experience implementing NEPA, Wood makes four key recommendations:
- The NEPA regulations should be revised to state clearly that a federal agency is legally required to produce an environmental impact statement (EIS) or supplemental EIS (SEIS) only if the proposed federal action presents the potential for significant adverse effects on the human environment.
- The regulations should be revised to state clearly that a federal agency is not legally required to produce an EIS or SEIS if the proposed federal action under review presents the potential for significant beneficial effects on the human environment, but no likelihood of significant adverse environmental effects.
- The regulations should be revised to clearly and unambiguously adopt the “mitigated finding of no significant impact” (FONSI) principle, which would allow a FONSI rather than an EIS where a proposed federal action that originally would require an EIS can be modified by adopting mitigation measures that would reduce adverse environmental effects to the “less than significant” level.
- CEQ should amend its definition of “federal action” to affirm the right and responsibility of every federal agency to determine the appropriate “scope of analysis” that will govern every agency NEPA document, based on that agency’s understanding of its legal authorities and areas of responsibility and control.
Taken together, Wood’s proposals aim to lessen the ambiguity regarding what triggers a federal agency’s legal obligation to produce an EIS or SEIS. Moreover, Wood argues, such reforms would help prevent delaying or cancelling important infrastructure projects while still protecting the environment.
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