The White House Council on Environmental Quality on April 30 finalized a rule to reform, simplify, and modernize the federal environmental review process under the National Environmental Policy Act.
“CEQ’s Bipartisan Permitting Reform Implementation Rule fully implements new permitting efficiencies that the President secured in the Fiscal Responsibility Act of 2023, including setting clear deadlines for agencies to complete environmental reviews, requiring a lead agency and setting specific expectations for lead and cooperating agencies, and creating a unified and coordinated federal review process,” a White House news release said.
In addition to implementing the Fiscal Responsibility Act, the rule provides agencies with other new and faster tools to improve the efficiency and effectiveness of environmental reviews, the White House said.
For example, it creates new ways for federal agencies to establish categorical exclusions, the fastest form of environmental review. The rule will also help accelerate reviews for projects that agencies can evaluate on a broad, programmatic scale, or that incorporate measures to mitigate adverse effects. These updates will help industry by speeding up environmental reviews and providing more certainty when they are designing projects.
The new rule also “promotes early public engagement in environmental review processes to help reduce conflict, accelerate project reviews, improve project design and outcomes, and increase legal durability. Together, these reforms will help accelerate permitting for everything from wildfire management and electric vehicle charging infrastructure to high-speed internet and semiconductor manufacturing,’ the White House said.
In addition to identifying a lead federal agency, setting clear one- and two-year environmental review deadlines and page limits, and incorporating procedures for agencies to adopt categorical exclusions established by other agencies as directed by the Fiscal Responsibility Act, the rule creates other new efficiencies that result in a more predictable and efficient permitting process and increased certainty for project sponsors, the White House said.
The rule accelerates these projects by:
- Establishing new and more flexible methods for agencies to establish categorical exclusions to speed up low-impact projects, from solar storage and electric vehicle charging infrastructure to transmission improvements and broadband deployment. This includes clarifying that agencies can jointly establish categorical exclusions.
- Expanding the use of programmatic environmental reviews, consistent with the Fiscal Responsibility Act, to help speed the construction of everything from semiconductor manufacturing to transmission and offshore wind. The rule also promotes the use of shared analysis to discourage duplication of effort.
- Enabling lower levels of environmental review—to accelerate approvals—when a project sponsor or agency has opted to mitigate the effects of the project.
- Clarifying that projects with long-lasting beneficial impacts, such as environmental restoration activities that do not have significant adverse effects, do not require environmental impact statements.
- Ensuring evaluation of reasonable alternatives, which helps drive better decisions, including advancing projects with lower greenhouse gas emissions such as wind and solar.
The final rule also clarifies that agencies should consider the effects of climate change in environmental reviews and encourage identification of reasonable alternatives that will mitigate climate impacts.
The rule also requires environmental impact statements to discuss relevant risk reduction, resiliency, or adaptation measures, as well as the potential for disproportionate adverse effects on the environment and public health.
It also restores and updates “the long-standing approach to evaluate the significance of a proposed action’s environmental effects, which was rolled back by the last Administration, to ensure agencies conduct the proper level of environmental review, and that reviews focus on the consequential effects of proposed actions,” the White House said.
Where feasible, it requires environmental reviews to quantify the reasonably foreseeable greenhouse gas emissions of a proposed project to better understand its climate impacts and directs agencies to identify the environmentally preferable alternative(s) earlier in the review process, rather than waiting for the final decision.
The rule advances environmental justice and promotes meaningful public input. The rule “helps ensure projects are built smart from the start by promoting early and meaningful engagement with communities, fostering community buy-in, reducing or avoiding conflict, and improving project design.”
In addition, the rule directs agencies -- consistent with current best practices -- to consider environmental justice in environmental reviews and to encourage measures to avoid or reduce disproportionate effects on communities, including the cumulative impacts of pollution.
Also, it requires agencies to consider the needs of affected communities when developing outreach and notification strategies so communities know about and can participate in decisions that affect them and directs agencies to identify Chief Public Engagement Officers responsible for facilitating community engagement for environmental reviews.
It also defines “environmental justice” and “communities with environmental justice concerns” consistent with NEPA’s purpose, longstanding agency practice, and Executive Order 14096.
Also, it reverse provisions of the 2020 NEPA rule “that were legally questionable: The rule removes provisions that created litigation risks and jeopardized community input,” the White House said.
CEQ conducted a review of more than 148,000 public comments on the proposed rule, of which approximately 920 were unique comments. CEQ also incorporated feedback from federal agencies.
The American Public Power Association submitted comments in September 2023.
The Bipartisan Permitting Reform Implementation Rule will apply to projects beginning environmental review on or after July 1, 2024. It will not disrupt ongoing environmental review processes.
In 2022, CEQ finalized a targeted rule that restored three basic elements of the NEPA regulations, including a reaffirmation that federal agencies must evaluate all relevant environmental effects --including those associated with climate change -- during environmental reviews.
In early 2023, CEQ also issued guidance to agencies on how to account for climate change and greenhouse gas emissions in environmental reviews, so fewer projects get tangled up in litigation and more projects get built right the first time.
The Bipartisan Permitting Reform Implementation Rule concludes “Phase 2” of CEQ’s NEPA rulemaking.
