NEPA Rules Rewrite: Déjà Vu All Over Again

Nossaman LLP

This is the first in a series of eAlerts on proposed revisions to regulations implementing the National Environmental Policy Act (NEPA) issued by the Council on Environmental Quality (CEQ). This Notice of Proposed Rulemaking (NPRM) initiates “Phase 1” of CEQ’s two-part effort to reconsider the comprehensive modification of the NEPA regulations issued during the Trump administration. The 2020 regulations were the first and only significant revisions of the NEPA regulations since the regulations were first issued in 1978. In his first day in office, President Biden directed the CEQ to reassess the 2020 regulations by Executive Order 13990.

This “Phase 1” rulemaking has previously been described by CEQ as including a “narrow” set of changes to address the Biden administration’s overarching goals of improving our nation’s resilience to the impacts of climate change and prioritizing environmental justice, as well as addressing near-term “interpretive and implementation problems” with the 2020 regulations. 

The second phase of CEQ’s intended revisions to NEPA regulations will also address these goals, but will be “broader” in nature. In the preamble to the Phase 1 Revisions, the CEQ states plainly that the agency intends to “generally restore” NEPA regulations that had been in place since the 1970s until they were revised under the Trump administration. For ease of reference, we shall refer to the NEPA regulations as they were before 2020 as the 1978 Regulations, the current NEPA regulations as the 2020 Regulations and the NPRM as Phase 1 Revisions. 

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