Amending the NEPA Regulations
| Date | 01 July 2022 |
| Author | Jim McElfish, Kym Hunter, Tanya C. Nesbitt, Suzi Ruhl |
7-2022 ENVIRONMENTAL LAW REPORTER 52 ELR 10515
DIALOGUE
AMENDING THE NEPA REGULATIONS
SUMMARY
The Joe Biden Administration has proposed reversing a number of the Donald Trump Administration’s changes
to the National Environmental Policy Act (NEPA) regulations by again requiring federal agencies to evaluate
the direct, indirect, and cumulative environmental impacts of projects under environmental review. On April
20, 2022, the first phase of those amendments was finalized, and on April 21, the Environmental Law Insti-
tute hosted a panel of experts to explore the changes to NEPA implementation, and how they might impact
climate change policy and environmental justice. Below we present a transcript of that discussion, which has
been edited for style, clarity, and space considerations.
Jim McElsh (moderator) is Director of the Sustainable
Use of Land Program and Senior Attorney at the
Environmental Law Institute.
Kym Hunter is a Senior Attorney and Government
Accountability Regional L eader at the Southern
Environmenta l Law Center.
Tanya C. Nesbitt is a Partner at Marten Law LLP.
Suzi Ruhl is Director of Policy at the Elevate Policy Lab
and Senior Research Scientist at the Yale Child Study Cen-
ter, School of Medecine.
Jim McElsh: I think we hit the jackpot in terms of both
panelists and timing today. You all enrolled to discuss
where we’re headed with National Environmental Policy
Ac t ( NE PA) 1 regulations. As most of you know, Phase 1
of the Joe Biden Administration’s NEPA regulations were
issued on April 20, 2022.2 I look forward to hearing f rom
our panelists on this important topic.
We’ll begin with Kym Hunter, a senior attorney at the
Southern Environmental Law Center, where she acts as
lead attorney on one of the cases now before the U.S. Court
of Appeals for the Fourth Circuit cha llenging the former
admin istrat ion’s NEPA regulat ions.3 Kym has va st experi-
ence in litigation against t he government, representing citi-
zen groups and community organiz ations.
She’ll be followed by Tanya Nesbitt with Marten Law
LLP. Tanya’s an experienced litigator with a long career at
the U.S. Department of Justice in natural re sources-related
work, where she was involved with NEPA and all of its
applications through public land s and resou rces deci sions.
Of course, as a private practitioner, she will likely have
some things to say about permitting and opportunities for
both industry and government in the transition to other
forms of energy permitting.
1. 42 U.S.C. §§4321-4370h, ELR S. NEPA §§2-209.
2. 87 Fed. Reg. 23453 (Apr. 20, 2022).
3. Wild Va. v. Council on Env’t Quality, No. 21-01839 (4th Cir. Aug. 2,
2021).
Suzi Ruhl, an attorney and epidemiologist, wears both
a legal hat and a public health hat. Many years ago, she
founded an organization ca lled the Legal Environmental
Assistance Foundation, a leading litig ating and advocacy
organization in the Southeast. She also spent many years
at the U.S. Environmental Protection Agency (EPA) with
its environmental justice program, and led an interagency
eort on applying NEPA to make environmental justice
practice more eective across the entire federal fa mily. Suzi
is currently with the Yale School of Medecine and Yale
School of Public Health, where she’s leading some very
interesting eorts dealing with improving public health
and environmental justice.
I want to say a few words to set the stage. As you know,
when we talk about NEPA, most of us have really been
talking ab out the NEPA regulations that were rst adopted
in interim form in 1971.4 But the ones we’ve come to know
and use are the 1978 regulations,5 which stood until 2020
as our touchstone for dening a cumulative impact, a sig-
nicant impact, public participation, a nding of no sig-
nicant impact, and so on. ose NEPA regulations stood
as a monument of the 1970s on how to think futuristica lly
and adaptively.
In 2020, the Donald Trump Administration’s Council
on Environmental Quality (CEQ ) proposed and nalized
wholesale revisions to those regulations.6 e 2020 regula-
tions made numerous changes dealing with which eects
would be considered, setting time limits and page limits
with more specicity than the 1978 regulations, providing
that project proponents could themselves prepare the envi-
ronmental documents, establishing rebuttable presump-
tions, and so on. ese changes were pretty d rastic. Some
were welcomed across the spectrum of NEPA practitioners.
4. 36 Fed. Reg. 7724 (Apr. 23, 1971).
5. 43 Fed. Reg. 55978 (Nov. 29, 1978).
6. 85 Fed. Reg. 43304 (July 16, 2020).
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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