New NEPA Proposed Regulations: The Bipartisan Permitting Reform Implementation Rule 

Live Webinar   |   Wednesday, September 20, 2023
9:00 - 11:00 am PDT, 10:00 am - 12:00 pm MDT, 11:00 am - 1:00 pm CDT, 12:00 - 2:00 pm EDT 

The Council on Environmental Quality (CEQ) has proposed further amendments to its National Environmental Policy Act (NEPA) implementing regulations as part of its phased rulemaking initiated in 2021. The proposed Bipartisan Permitting Reform Implementation Rule (Proposed Rule), published in the July 31, 2023, Federal Register, is the second phase of CEQ’s rulemaking effort and reflects a broad proposal to “revise, update and modernize” the regulations at 40 CFR Parts 1500-1508.

This panel will discuss the pending rulemaking as part of a broad regulatory reform directed by President Biden in Executive Order 13990 (January 20, 2021) and CEQ’s approach of two-phase rulemaking. Phase one of CEQ’s NEPA rulemaking, finalized on April 20, 2022 (2022 Rule), was a targeted reversal of three of the agency’s changes made in the last year of the Trump Administration (2020 Rule). The 2022 Rule (1) required federal agencies to once again consider the “direct,” “indirect,” and “cumulative” effects of a proposed action; (2) reverted to the previous regulatory definition of what constitutes the “purpose and need” of a proposal for agency action by eliminating references to the applicant’s goals as a relevant consideration; and (3) restored the ability of federal agencies to expand their NEPA procedures and treat CEQ’s regulations as a floor, not a ceiling.

By comparison, the phase two Proposed Rule is a broader vehicle for implementing Biden Administration priorities, including bipartisan permitting reforms in the Fiscal Responsibility Act and first-time codification of climate change and environmental justice principles for NEPA purposes. The proposed revisions are substantial. While many changes are intended to restore the rules to their 1978 language and intent, the Proposed Rule also introduces a novel approach to new agency categorical exclusions, addresses how agencies might approach projects with substantial beneficial effects, and invites stakeholder input regarding innovative approaches to NEPA compliance where extreme environmental challenges are at issue.

Public comments on the Proposed Rule are due on September 29, 2023. For anyone interested in NEPA, this panel discussion should not be missed!

EDWARD (TED) BOLING, Partner, Perkins Coie LLP, formerly Associate Director, Council on Environmental Quality, Washington, DC
MEGAN HEALY, Deputy Director for NEPA, Council on Environmental Quality, Washington, DC
JOMAR MALDONADO, Director for NEPA, Council on Environmental Quality, Washington, DC
KYM MEYER, Litigation Director, Southern Environmental Law Center, Chapel Hill, NC
ANN D. NAVARO, Partner, Bracewell, formerly Counselor to the Solicitor, U.S. Department of the Interior, Washington, DC