Council on Environmental Quality Takes First Step to Implement Trump Executive Order on Streamlining Federal Environmental Reviews

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On September 14, 2017, the Council on Environmental Quality (CEQ), which oversees compliance with the National Environmental Policy Act (NEPA) by federal agencies, announced a list of planned actions to implement President Trump’s Executive Order (EO) on streamlining federal environmental reviews and approvals.

Issued on August 15, EO 13807 required CEQ to develop initial action items within 30 days. CEQ has now done so, listing the following planned actions in a notice in the Federal Register and in an accompanying fact sheet:

    1. Consult with the Office of Management and Budget and Federal Permitting Improvement Steering Council to develop a framework for implementing EO 13807’s “One Federal Decision” mechanism in which, once the lead agency conducting NEPA review of a proposed project issues its Record of Decision (ROD), other agencies must provide all necessary approvals within 90 days of the ROD;

 

    1. Coordinate with the Permitting Steering Council, Department of Transportation, and the Army Corps of Engineers to identify certain “high-priority” projects pursuant to EO 13766 (January 24, 2017);

 

    1. Revise or supplement CEQ regulations implementing NEPA;

 

    1. Issue additional guidance to simplify and accelerate NEPA review, possibly in a practitioner handbook, on how agencies could address the following issues: public involvement; deference to the lead agency’s statement of purpose and need and range of alternatives; appropriate cumulative impacts analysis; reliance on prior studies, analyses, and decisions of projects within the same general location; and reliance on State, local and tribal environmental review;

 

  1. Form and lead an interagency working group to review agency regulations and policies that may impede efficient environmental review and permitting.

The prospect of new or revised CEQ regulations and guidance is worth noting. NEPA is a short statute, providing a framework statement of policy rather than detailed direction on conducting environmental reviews. While each federal agency is directed to develop its own regulations and procedures for NEPA review, agencies and courts rely on CEQ regulations and guidance in interpreting and applying NEPA requirements. CEQ’s notice signals its specific intent to revisit, modify, or supplement existing guidance on categorical exclusions, environmental assessments and environmental impact statements.

However, CEQ could choose to go further and modify its regulations for implementing NEPA at 40 C.F.R parts 1501–1508. Given the bare-bones nature of NEPA itself, there could be considerable room for regulatory revision without conflicting with the statute. If CEQ does make major changes, agencies and courts would look to those revised requirements, potentially altering long-established NEPA practices and precedents. Thus, EO 13807 and the CEQ notice have launched a process which ultimately could transform federal environmental review. However, the EO and notice provide few specifics, and it remains to be seen whether they will succeed in achieving the EO’s goal of effectively simplifying and streamlining NEPA reviews.