Trump Administration Continues Project Permitting Streamlining Efforts

The White House’s Council on Environmental Quality (CEQ) announced on June 20, 2018 that it is considering updating its regulations implementing the National Environmental Policy Act (NEPA). Specifically, the CEQ issued an Advance Notice of Proposed Rulemaking seeking public comment on 20 questions regarding NEPA process and procedures under its existing regulations. Because CEQ oversees NEPA implementation for all federal agencies, potential changes to its regulations could result in wide-ranging permitting changes for projects requiring federal approvals or funding. 

The CEQ’s announcement is the most concrete effort yet by the Trump Administration to streamline federal permitting processes. To date, the administration has focused on policy directives and guidance which, while binding federal agencies, do not carry the force and effect of law. These include Executive Order 13807 which generally aims to ease permitting for major infrastructure projects by creating a single lead federal agency, accountability tracking and two-year timeline to complete NEPA review, and actions by individual agencies such as the Interior Department which has issued a follow-on Secretarial Order and implementation guidance to establish, among other things, page limits for Environmental Impact Statements and time limits to complete EISs. Federal agencies and staff are still sorting through implementation of these informal directives and the practical effect on project permitting remains unclear.

The potential for changes to NEPA’s implementing regulations would likely result in far more concrete and broader reaching impacts on permitting federal projects. Although the CEQ announcement does not provide direction on changes it is considering, CEQ is soliciting comments in furtherance of the directives identified in Executive Order 13807. Executive Order 13807 directed CEQ to “enhance and modernize” the federal environmental review process by “ensuring optimal interagency cooperation,” facilitating reliance on studies conducted in support of earlier environmental reviews, and “ensur[ing] that agencies apply NEPA in a manner that reduces unnecessary burdens and delays as much as possible, including by using CEQ’s authority to interpret NEPA to simplify and accelerate the NEPA review process.” 

The questions CEQ posed indicate that it is considering both procedural and substantive changes to the regulations. These include:

• Should CEQ’s NEPA regulations be revised to ensure that environmental reviews and authorization decisions involving multiple agencies are conducted in a manner that is concurrent, synchronized, timely, and efficient, and if so, how?
• Should CEQ’s NEPA regulations be revised to provide greater clarity to ensure NEPA documents better focus on significant issues that are relevant and useful to decision makers and the public, and if so, how?
• Should definitions of any key NEPA terms in CEQ’s NEPA regulations such as those listed below, be revised, and if so, how? 
  1. Major Federal Action;
  2. Effects;
  3. Cumulative Impact;
  4. Significantly;
  5. Scope; and
  6. Other NEPA terms.
• Should the provisions in CEQ’s NEPA regulations relating to the appropriate range of alternatives in NEPA reviews and which alternatives may be eliminated from detailed analysis be revised, and if so, how?

Comments in response to CEQ’s questions are due on or before July 20, 2018. Thereafter, should CEQ decide to move forward, it would issue a notice of proposed rulemaking setting out specific proposed changes to its NEPA regulations and requesting public comments on those changes.