Since the 1970s, the National Environmental Policy Act (“NEPA” or the “Act”) has required federal agencies to evaluate the environmental impacts of their proposed actions. Although NEPA was widely criticized from both sides, it remained largely unchanged over the last 50 years. Recently, the Trump administration made significant revisions, the first such changes since its enactment. Now the Biden administration is pushing back and seeking to undo some of the Trump era revisions and possibly add a new twist of its own.

On January 27, 2021, President Biden signed E.O. 14008, Tackling the Climate Crisis at Home and Abroad, which prioritized addressing the climate crisis and environmental justice. In line with this E.O., and a previous E.O. that directed agencies to review Trump era regulations, the Council on Environmental Quality (CEQ) released on October 7, 2021 a Phase I Notice of Proposed Rulemaking. The Phase I Notice outlined the CEQ’s intent to “restore regulatory provisions [in NEPA] that were in effect for decades before being modified in 2020.” In particular the CEQ plans to restore three key components of NEPA regulations:

  • To eliminate language in the description of purpose and need for a proposed action that required the agency to base the purpose and need on the goals of the applicant and the agency’s authority. This language, added during the Trump administration, could be seen as requiring the agency to prioritize the applicant’s goal over other factors;
  • To remove limitations on agency NEPA procedures for implementing CEQ’s NEPA Regulations thereby making it clear that “agencies have the discretion and flexibility to develop procedures beyond the CEQ regulatory requirements”; and
  • To restore to the definitions of “effects” or “impacts in the prior NEPA regulations.

While these revisions merely restore previous NEPA provisions, Phase II of the rulemaking process is expected to go further, focusing primarily on environmental justice and climate change issues, which could result in more stringent review, additional obstacles to development, and delays.

Although NEPA is only triggered when projects have a federal nexus, involving agency action regarding federal lands, federal money, or federal permits/approvals, the frequency of federal involvement may increase in the coming years as projects become increasingly large in size and complexity. For example, offshore wind is a priority for the Biden administration and could see increased development in the coming years. Additionally, many are hopeful for new transmission development as they see current electric transmission constraints as a significant barrier to renewable energy development. These kinds of projects are likely to trigger NEPA and may face additional barriers under a revised NEPA.

The current comment period gives businesses, individuals, and others the opportunity to weigh in and help fashion a final rule that will effectuate the purposes of NEPA while limiting federal regulation of future developments. The preamble to the proposed rule provides the rationale for some of the proposed revisions and invites comments on all these changes and other approaches that may have significant, if unintended, consequences.

If you have not already done so, consider taking time to review the proposed rule and preamble and consider how it might affect your business.  If you expect the rule to impact your business operations, consider submitting comments (directly, with the assistance of legal counsel, or through an industry association) on the proposed changes. The comment period for the Phase I notice ends on November 22, 2021. More than 13,000 comments have already been submitted in response to the Phase I. Stay tuned throughout this process as the Biden administration tries to balance a more stringent NEPA with a continued push for renewable energy development.

For more information about how this rulemaking may affect your organization or assistance with filing comments on the proposed rule before the November 22 deadline, please contact Daniel Fanning, Leah Kaiser, or another member of Husch Blackwell’s Solar Energy, Wind Energy, or Energy Storage teams.