CEQ’s Proposed NEPA Regulations:  Terrible or So Very Helpful for Surface Transportation Projects?
CEQ’s Proposed NEPA Regulations:  Terrible or So Very Helpful for Surface Transportation Projects?

The Eno Center for Transportation published a two-part article in the Eno Transportation Weekly that focuses on the potential implications of the changes proposed by the Notice of Proposed Rulemaking (NPRM) modifying the regulations implementing the National Environmental Policy Act (NEPA), with particular emphasis on federal surface transportation programs. 

The article examines whether, at least for surface transportation programs, the changes to the Council on Environmental Quality’s (CEQ) proposed revisions are as dramatic as reported.  We posit that they are not, for the following reasons.  First, CEQ has only limited ability to make truly radical changes because so much of NEPA and the implementing regulations are governed by interpretations of the law in a myriad of court decisions.  Second, the NPRM proposes to implement the various executive orders issued by Presidents Bush, Obama, and Trump, which already contain a variety of measures designed to improve the interagency coordination process and other directions aimed at creating a more efficient NEPA process.  Third, since the enactment of the Transportation Equity Act for the 21st Century (TEA-21) in 1998 and all subsequent reauthorizations through the Fixing America’s Surface Transportation Act (FAST Act) in 2015, Congress has enacted ever stronger provisions designed to expedite the NEPA process for transportation projects.   Thus, federal transportation agencies have had a head start on implementing many of the measures proposed in the NPRM.

The Eno article focuses on seven parts of the NPRM that have received considerable attention.  Part 1 of the article, published on February 21, focuses on changes related to designation of senior agency officials, proposed time limits and page limits.

Senior Agency Official.  The NPRM proposes to require each federal agency to designate an assistant secretary or equivalent as the Senior Agency Official.  The Official is to act as an advocate of the agencies NEPA process and to rule on requests to extend the one- or two-year time limit to compete the NEPA process and exceed the page limit for the EIS.  Although seemingly innocuous, the impact could be substantial, given that such requests are currently left to the agency itself with little or no oversight.  Requiring a written request made to a very senior office would bring more discipline to these decisions. 

Time Limits.  The NPRM would set a time limit of two years for completing an EIS and one year for completing an EA, making the time limit goals set forth in President Trump’s executive order a requirement.  Exceptions may be granted if approved by the Senior Agency Official.  There are three problems with these time limits:

(1) Generally, EISs are prepared only when there are major, unavoidable impacts from a project or the project is a very large one.  Simply describing the project and obtaining interagency cooperation regarding the many issues such a project might present may make it difficult to comply with time limits; 

(2) These large projects are often controversial and generate much public and agency comment and objections. Resolving this issues in a timely fashion could be difficult; and

(3) President Trump’s directive that resource agencies make any necessary approvals within 90 days of completion of the NEPA process requires more interagency cooperation and additional information in the EIS, making timely completion of an EIS more difficult.  Some of these issues may be offset by the NPRM’s suggestion that a Notice of Intent (NOI) be delayed until sometime after the start of scoping (early environmental studies and interagency coordination), once there is sufficient detail to allow for meaningful public comment. 

FHWA and FTA have strongly encouraged linking the transportation planning and NEPA processes, which would result in project development being at a more mature level once the EIS process starts.

Page Limits.  Page limits exist in the current CEQ regulations, though average lengths of NEPA documents greatly exceed the suggested limits.  Under the NPRM, an agency could exceed these limits only if approved by the Senior Agency Official.  A limit of 150 or 300 pages could be quite difficult to realize for transportation projects requiring an EIS, which are generally complex and involve many kinds of environmental issues.  However, neither the current rule nor the NPRM limits the number of reports, appendices, and other documents that may be incorporated by reference.  Thus, it is likely that the total length of the EIS and supporting documents will not change.

To read Part 1 of the Eno article in full, please click HERE.  Stay tuned for our summary of Part 2.

  • David J. Miller

    David Miller assists clients on a variety of complex land use and environment related matters, including matters dealing with the National Environmental Policy Act, Section 4(f) of the Department of Transportation Act, and the ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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