Top 5 bipartisan permit reforms in NEPA regulations

The Biden administration released final revisions to regulations that implement the National Environmental Policy Act last week, and as expected there are many changes that have bipartisan support.?The following are the top five most important bipartisan changes I see in the rule.?

I also highlight some of the best changes that the White House Council on Environmental Quality (CEQ) made in other areas of the regulations.

Top 5

1. Deadlines: We now have both Trump and Biden administration affirmation that 1 year deadlines for environmental assessments and 2 year deadlines for environmental impact statements are real.? (Deadlines were a big part of the Carter administration’s NEPA rules as well, even though they were widely ignored in the decades that followed.)? The Biden rule goes further, and directs agencies to develop schedules for completion of both EAs and EISs that include detailed milestones which would be helpful in identifying projects that are off-track and helping them address delays.? Its unfortunate that it doesn’t require the schedules to be public, but they are surely the kind of information that is appropriate to FOIA so I’d assume agencies will end up making them public, one way or another.? It would be nice if more digital tools existed to integrate information from field staff and consultants involved in reviews directly into the schedules, but nothing precludes that from happening.? Lead agencies have to report back to Congress on missed deadlines.? This timeline schedule for all EISs and EAs will probably be one of the most important legacies of the rulemaking over time.?
2. Drivers seats: Imagine trying to get five friends, two of whom don’t really get along, to plan out a cross-country drive including all of the stops and food plans along the way, and then make the drive.? That is a reasonable, simple analogy to the complexity involved when big infrastructure projects have to go through NEPA procedures. ?A ‘lead agency’ is kind of equivalent to the way you’d all treat the friend whose car it is, who has a gluten allergy and is also paying more than their fair share because they have the biggest salary among you.? They don’t get an absolute veto authority or anything, but you kind of pay them a bit more attention and their opinion often helps when there is a conflict between Taco Bell and Wendy’s.?? Backed by Congressional direction, CEQ has kept in place smart direction on the designation of a lead among the agencies, will keep allowing states or tribes to ask for one to be designated when federal agencies don’t do so themselves, and keeps lead agencies in an important role on schedules and milestones throughout a review.?
3. Shorter: Page limits are another bipartisan win: 150 pages for normal EISs and 300 pages for ones of extraordinary complexity.
4. New ways to get categorical exclusions: Congress told CEQ to make it easier for one agency to adopt another’s categorical exclusion and they duly did so.? CEQ went one better and has now clarified that it is also acceptable for agencies to use a land use plan, any decision document that has an EIS or EA attached to it, or anything similar.? This gives agencies a lot more opportunity to develop categorical exclusions as the need arises and seems like a great idea. Agencies are also allowed to use mitigation (including compensatory actions) as part of the action to allow it to be covered by a categorical exclusion.
5. Programmatic review versus tiering: Tiering is a term of art referring to the reliance on an analysis from a programmatic document (and not repeating it) when a subsequent action is being reviewed under NEPA.? Think of a group of friends and after one answers a question, the next person just says ‘ditto’ or ‘what she said.’? That’s tiering.? ?While the new regulation eliminates the ‘tiering’ section which had been a novel part of the Trump rule, it replaces it with text that serves much the same purpose.The Biden rule specifies a long list of actions that are appropriate for programmatic review (e.g. regulations, policies, land use plans, etc.).? and directs tiering as a way to avoid duplication and delay, just as the Trump rule did.?

Important and needed changes

There are many subtle changes in the regulations – small wording shifts.? Some of these may end up having a profound effect on implementation, including determining whether the rule makes NEPA-related permitting more or less time- and resource-consuming in the long run.?

However, here are a handful of the less subtle changes that are a really important step forward for the identification, avoidance, and offsetting of harms to our environment and steps forward to better planning around infrastructure and other projects. You can find another great review of the major parts of the rule from Ted Boling and Kerensa Gimre here. Or from Adam Davis here.

1. Environmental Justice and climate become part of the purpose of the law: A ‘purpose’ clause is fundamental to how agencies interpret and prioritize a regulation.? Whereas the Trump rule eliminated the section of regulations that had explained (since 1978!) the purpose of NEPA, the new rule restores it but with a welcome additional emphasis on a) asking agencies to incorporate NEPA steps into other required regulatory processes if it makes things more efficiently (basically they said that avoided duplication is important enough to be a purpose of the regulations.? They clarified that public involvement is not enough – agencies also need to include meaningful engagement with communities, including environmental justice communities.? Third, the new rule creates new priorities in the development of alternatives that will reduce climate change-related effects or address impacts on environmental justice communities.? The rule also brings in Indigenous knowledge as a source of expertise.? The rule expands direction for agencies to bring the public into the process at the scoping stage.? Many critics of past NEPA processes have rightly pointed out that it feels like no one talks to the public until the options are already set in stone.? These changes should help reduce that problem and in theory lead to projects that could have more public support because they have been better designed from the beginning.?Climate change is an obvious environmental impact – but for our stupid politics, no one should have to spell this out.? But sobeit, its there now.? The focus on environmental justice is an especially welcome and important change, put powerfully into the regulations here and in other areas.? ?
2. My favorite: This sentence: “Most importantly, environmental documents must concentrate on the issues that are truly relevant to the action in question, rather than amassing needless detail.”? If only one sentence of this rule could be implemented fully and comprehensively, I would have it be this sentence.? Concise and precise NEPA documents that are focused on the biggest issues of concern to agencies, states, Tribes, and the public could make environmental reviews useful again.
3. Avoidance, minimization and offsetting: The rule is a major step forward in the use of all three parts of the mitigation hierarchy in creating options for more efficient and effective permitting.? The ability to reach a finding of no significant impact (and thus avoid an EIS) through the use of mitigation has been policy since 2014 but now its in a stronger regulatory statement that also makes that mitigation enforceable.? In addition, the rule spells out that mitigation measures that are part of the agency decision must also be fully enforceable, including monitoring and funding requirements.
4. Significant effects = adverse ones: An occasional stumbling block to environmentally beneficial projects like river restoration efforts is that agencies sometimes interpret positive environmental effects as significant mandating various levels of NEPA review.? This is a minor clarification but one that will be more important than ever for all the climate resilience work that America needs – the rule defines ‘significant effects’ as only ones that are adverse.? Thank you.? The rule also clarifies that when a short term harm (for example to a fire-dependent species from a prescribed burn) is followed by a long-term benefit, it’s the long-term effect that is likely important for evaluating significance.? Thank you again!

Artificial intelligence has a take on it too

Lastly, Perplexity said this about the differences between the Biden and Trump rules when I asked it to give me a detailed 1,000 word or less summary after uploading just the regulatory text of both documents. Helpful.

The key differences between the Trump NEPA rule and the Biden NEPA rule are as follows:

Purpose and Policy

The Trump NEPA rule focused on reducing paperwork, delays, and litigation, with the goal of making the NEPA process more efficient. In contrast, the Biden NEPA rule emphasizes the core purposes of NEPA - to protect the environment, foster public engagement, and ensure agencies consider environmental impacts in their decision-making.The Biden rule states that NEPA is the "basic national charter for protection of the environment" and establishes the federal government's continuing responsibility to "use all practicable means" to achieve the environmental policy goals laid out in NEPA Section 101. This includes fostering "productive harmony" between humans and nature, assuring "safe, healthful, productive, and aesthetically and culturally pleasing surroundings", and preserving "important historic, cultural, and natural aspects of our national heritage."1In contrast, the Trump rule focused more narrowly on making the NEPA process more "efficient" by reducing paperwork, deadlines, and litigation. While the Biden rule also aims for efficiency, it does so in service of NEPA's core environmental protection and public engagement purposes, rather than as an end in itself.

Scope of NEPA Review

The Biden rule provides more detailed guidance on determining the appropriate level of NEPA review. It establishes a three-part framework:

1. Applicability - Agencies must first assess whether NEPA even applies to the proposed action, considering factors like statutory exemptions, conflicts with other laws, and non-discretionary actions.
2. Scope of Analysis - Agencies must consider the scope of the proposed action and its effects to inform the level of NEPA review. This includes evaluating connected actions and avoiding segmentation.
3. Levels of Review - Based on the scope, agencies determine whether the action is appropriate for a categorical exclusion, environmental assessment, or environmental impact statement.

The Trump rule did not provide this structured approach. It focused more on tools to streamline the NEPA process, like categorical exclusions and deadlines, without as much guidance on the threshold determination of NEPA applicability and scope.

Significance Determination

The Biden rule provides more detailed criteria for determining the "significance" of a proposed action's environmental impacts, which is the key factor in deciding whether an EIS is required.The rule states that agencies must analyze both the "context" (e.g. proximity to sensitive resources, duration of effects) and "intensity" (e.g. degree of adverse effects on public health, endangered species, environmental justice communities) of impacts. It also allows agencies to consider beneficial effects alongside adverse effects when assessing significance.In contrast, the Trump rule did not provide this level of detail on the significance determination. It simply stated that agencies should consider the "degree of the effects" without further elaboration.

Categorical Exclusions

Both rules allow agencies to establish categorical exclusions (CEs) for actions that normally do not have significant environmental impacts. However, the Biden rule imposes additional requirements:

• Agencies must provide the Council on Environmental Quality (CEQ) an opportunity to review and comment on proposed CEs.
• Agencies must provide public notice and comment on proposed CEs.
• CEs established through land use plans or programmatic NEPA reviews must include a process for determining extraordinary circumstances.
• Agencies can adopt CEs from other agencies, but must consult with the originating agency and provide public notice.

The Trump rule did not include these additional requirements for establishing or adopting CEs.

Public Engagement

The Biden rule places greater emphasis on early and meaningful public engagement, including:

• Requiring agencies to consult early with affected state, tribal, and local governments, as well as interested persons and organizations.
• Mandating that agencies involve the public, to the extent practicable, in preparing environmental assessments.
• Allowing agencies to hold public hearings and meetings electronically, expanding access.

The Trump rule did not include these specific provisions on public engagement, focusing more narrowly on reducing paperwork and deadlines.

Mitigation

The Biden rule explicitly states that NEPA requires agencies to consider mitigation measures that can avoid, minimize, or compensate for environmental impacts. It also requires agencies to monitor and enforce any mitigation commitments.The Trump rule did not include this level of detail on mitigation, instead focusing more broadly on reducing paperwork and delays.

Judicial Review

The Biden rule states that judicial review of NEPA compliance should generally occur only after the agency has issued a final decision, except for claims related to statutory deadlines. It also states that minor, non-substantive errors should be considered "harmless" and not invalidate agency actions.In contrast, the Trump rule was more ambiguous on the timing of judicial review, stating only that the Council intends for NEPA compliance to be resolved "as expeditiously as possible."In summary, the key differences reflect a fundamental shift in priorities. The Trump rule prioritized efficiency and reducing burdens, while the Biden rule emphasizes NEPA's core environmental protection and public engagement purposes. The Biden rule provides more detailed guidance on determining the appropriate scope and level of NEPA review, as well as greater requirements for public involvement and mitigation. This shift aligns with the Biden administration's broader focus on environmental justice, climate change, and restoring public trust in government decision-making.