Trump Administration is weighing potentially comprehensive overhaul to regulations governing federal environmental review to cut red tape and avoid excessive delay to process.

By Janice M. Schneider, Tommy P. Beaudreau, Jennifer K. Roy, Bobbi-Jo B. Dobush, and Diego Enrique Flores

The White House Council on Environmental Quality (CEQ) recently published an Advance Notice of Proposed Rulemaking (Advance Notice) in the Federal Register, requesting public comment on potential updates to the National Environmental Policy Act’s (NEPA’s) implementing regulations intended to “ensure a more efficient, timely, and effective NEPA process[.]” The public comment period currently lasts 30 days, until July 20, 2018.

The CEQ NEPA regulations, which were first promulgated in 1978, have only been revised once (to eliminate the “worst case” analysis requirement) in 40 years. The Advance Notice was prompted by an executive order issued by President Trump on August 15, 2017, directing CEQ to enhance and modernize the federal environmental review and authorization process. Streamlining the environmental review process and cutting red tape has been a hallmark priority of the Trump Administration. CEQ subsequently identified reviewing NEPA regulations as a priority for complying with President Trump’s executive order — consistent with the Trump Administration’s many actions — including the recently issued “One Federal Decision” Memorandum of Agreement. In particular, the Department of Interior has issued Secretarial orders and policy memoranda aimed at, among other things, compressing the time and length for agency preparation of environmental impact statements and other NEPA reviews. The potentially sweeping changes to CEQ’s NEPA regulations, signaled by the Advance Notice, may prove to be the Trump Administration’s most consequential reforms of the federal environmental review process.

Although any perceived weakening of protections under the NEPA regulations will meet strong opposition from the environmental community, streamlining the environmental review process has garnered support across administrations. Interested parties are encouraged to use this opportunity to submit comments as part of this stakeholder input process. In particular, energy, transportation, water, and other infrastructure proponents should utilize the process to share recommendations. CEQ has requested that commenters include corresponding question numbers in their responses and provide specific recommendations, if possible.

The 20 questions posed in the Advance Notice suggest that the Administration is considering a potentially comprehensive overhaul of the regulations. The questions raise prominent themes, including:

  • Narrowing of the scope of NEPA reviews
  • Adding clearly defined timeframes to complete the review process
  • Enhancing use of tiering and other federal, state, and tribal reviews
  • Enhancing interagency coordination and regulatory codification of the “One Federal Decision” concept
  • Reducing burdens on applicants and agencies and enhancing use of consultants
  • Potentially revising or adding key definitions, terms, and mitigation requirements, among others

One particularly interesting question asks whether the term “Trivial Violation” should be defined. This suggests that the Administration may be focused on trying to address agencies’ desires to “belt and suspender” NEPA reviews for fear of litigation, which often increases the length of the environmental review process. Which recommendations the Administration will ultimately include in a proposed rule remains to be seen, but this is the first regulatory step to try to influence that process.