Proposed Revisions to Improve and Modernize CEQ's NEPA Regulations

• Date: 01 June 2019

6-2019 NEWS & ANALYSIS 49 ELR 10529

COMMENTS

Proposed Revisions to Improve and

Modernize CEQ’s NEPA Regulations

by Lance D. Wood

Lance D. Wood is the Senior Counsel for Environmental Law and Regulatory Programs for the U.S. Army Corps of

Engineers, Washington, D.C., and a Professorial Lecturer in Law at the George Washington University Law School.

When the president’s Council on Environmental

Quality (CEQ) produced its Regulations for

Implementing the Procedural Provisions of the

National Environmental Policy Act1 (CEQ NEPA Regula-

tions) in 1978, those regulations were suciently compre-

hensive and of such high quality that they have received

hardly any amendment or modication since 1978.2 Nev-

ertheless, because of the long period of time since the regu-

lations were issued, and in response to President Donald

Trump’s call in Executive Order No. 138073 for CEQ to

enhance and modernize the federal environmental review

and authorization process, in the summer of 2018, CEQ

announced its intentions to revisit and revise its long-

standing NEPA regulations. is took the shape of a June

2018 advanced notice of proposed rulemaking (ANPRM)

soliciting t he various federal agencies and the general pub-

lic to provide recommendations “on potential revisions to

update the regulations and ensure a more ecient, timely,

and eective NEPA process consistent with the national

environmental policy stated in NEPA.”4

ere are at least four very important NEPA implemen-

tation matters (three closely related) that CEQ should have

addressed in 1978, and that it should address now by revis-

ing several sections of the regulations. e changes that

I recommend in this Comment would address these four

1. 40 C.F.R. pts. 1500-1508; 42 U.S.C. §§4321-4370h, ELR S. NEPA

§§2-209.

2. 40 C.F.R. §1502.22 was revised in 1986 to replace the “worst case anal-

ysis” with the existing provision regarding “incomplete or unavailable

information.”

3. Exec. Order No. 13807, 82 Fed. Reg. 40463 (Aug. 24, 2017).

4. See 83 Fed. Reg. 28591-92 (June 20, 2018) (ANPRM, citing Exec. Order

No. 13807, Establishing Discipline and Accountability in the Environmen-

tal Review and Permitting Process for Infrastructure Projects); 83 Fed. Reg.

32071 (July 11, 2018) (extension of ANPRM comment period).

serious problems that have troubled federal agencies and

the federal courts ever since 1978. Adopting the recom-

mendations and the specic changes to the CEQ NEPA

Regulations set forth and explained here would go a long

way to help answer the call for NEPA modernization.

I. Adverse Environmental Effects

Versus Benef‌icial Effects, and the

“Mitigated FONSI”

A. Three Related Issues

e rst three important matters relating to the CEQ

NEPA Regulations that should be addressed to remedy

ambiguities in and omissions from the existing regulations

are closely related to one another, as follows:

1. e CEQ NEPA Regulations should be revised to

state clearly that a federal agency is legally required

to produce an environmental impact statement (EIS)

or supplemental EIS (SEIS) only if the proposed

federal action under review presents the potential

for signicant adverse eects on the human envi-

ronment, after taking into consideration all miti-

gation measures that will be incorporated into the

proposed federal action.

2. e CEQ NEPA Regulations should be revised

to state clearly that a federal agency is not legally

required to produce an EIS or SEIS if the proposed

federal action under review presents the potential

for signicant benecial eects on the human envi-

ronment, but no likelihood of signicant adverse

environmental eects, after taking into consider-

ation all mitigation measures that will be incorpo-

rated into the federal action.

3. e CEQ NEPA Regulations should be revised to

clearly and unambiguously adopt the “mitigated

nding of no signicant impact (FONSI)” principle.

Author’s Note: Mr. Wood has worked as an environmental

lawyer for the U.S. Army Corps of Engineers headquarters

since May of 1976. is Comment expresses only his personal

views, and does not necessarily reect any ocial positions of

the U.S. Army Corps of Engineers or the U.S . Department of

the Army.

Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.