National Environmental Policy Act Regulations: Phase 2 – Public Engagement

05.29.2024
Nossaman eAlert

This is the fourth in a series of six eAlerts examining the Bipartisan Permitting Reform Implementation Rule published in the Federal Register on May 1, 2024 (Final Rule) by the Council on Environmental Quality (CEQ). The Final Rule amends CEQ’s National Environmental Policy Act (NEPA) regulations (40 CFR Parts 1500-1508). Our previous eAlerts provided: (1) background information and a brief overview of the Final Rule as a whole; (2) a discussion on how the Final Rule addresses the threshold determination of whether NEPA applies in the first place; and (3) a summary of the Final Rule’s revisions to NEPA’s streamlining provisions, such as those concerning document page limits, time limits for environmental reviews, and adoption of other agencies’ categorical exclusions.

Below, we discuss CEQ’s revisions to rules concerning public involvement in the NEPA review process, including consideration of environmental justice concerns and procedures for Tribal coordination. In the preamble to the Final Rule (Preamble), CEQ notes that the revisions are consistent with several Executive Orders issued by the Biden-Harris administration, including: (1) the January 27, 2021 Executive Order 14008, Tackling the Climate Crisis at Home and Abroad (E.O. 14008), which established a government-wide approach to addressing climate change by advancing environmental justice, among other strategies; (2) the January 25, 2021 Executive Order 13990, Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis (E.O. 13990), to review agency actions taken during the previous administration that conflict with national objectives to confront climate change; and (3) the April 21, 2023 Executive Order 14096, Revitalizing Our Nation's Commitment to Environmental Justice for All(E.O. 14096), to further incorporate environmental justice strategies into federal agency initiatives. Thus, in response to these Executive Orders, CEQ made revisions to the NEPA regulations and clarifications regarding public engagement during the NEPA review process, with the objectives of enabling meaningful public participation, advancing environmental justice, respecting Tribal sovereignty, and promoting more equitable environmental and community outcomes.

Public Engagement:

The Final Rule reinstates 40 CFR Section 1500.2, Policy, which appeared in the pre-2020 version of the regulations, but with certain updates to emphasize the importance of public engagement with respect to all communities potentially affected by an action, including but not limited to those with environmental justice concerns. As amended by the Final Rule, Section 1500.2 requires federal agencies to “[e]ncourage and facilitate public engagement in decisions that affect the quality of the human environment, including meaningful engagement with communities such as those with environmental justice concerns.” For guidance on what communities the regulations seek to include in the process, NEPA practitioners may look to the definitions of “communities with environmental justice concerns” and “environmental justice” in Section 1508.1, subdivisions (f) and (m), respectively. In the Preamble, CEQ also notes that consultation with individual Tribal Nations is distinct from the public engagement requirements of NEPA.

Public and Governmental Engagement:

Section 1501.9 of the Final Rule describes agencies' public engagement responsibilities. The CEQ made a number of changes to this section intended to foster improved public and governmental engagement while allowing agencies flexibility to tailor public engagement to their specific programs and actions. For instance, as noted in the Preamble, paragraph (a) clarifies that federal agencies can determine what methods are appropriate to achieve an inclusive process that meaningfully and effectively engages affected communities. Also, CEQ replaced previous references to “public involvement” with the term “public engagement” in this section and throughout the Final Rule to better reflect the interactive and collaborative manner in which federal agencies should communicate with the public and interested or affected parties. According to the Preamble, the changes to this section emphasize the importance of creating an accessible and transparent NEPA process.

Deadlines and Schedule for the NEPA Process:

With respect to Tribal consultations, the Final Rule adds paragraph (d)(9) at Section 1501.10 to address agencies’ consideration of the time necessary to conduct government-to-government Tribal consultations. In the Preamble, CEQ notes that the new language in this section is meant to encourage agencies to ensure they are building sufficient time in their schedules to conduct meaningful consultation with Tribal Nations.

Scoping:

The CEQ made several updates to Section 1502.4, Scoping, to clarify the responsibilities of lead agencies with respect to public scoping for preparation of EISs. For example, CEQ added an introductory sentence in this section requiring agencies to notify persons and agencies that may be interested or affected by an agency's proposed action, consistent with the public and governmental engagement requirements set forth in Section 1501.9. In addition, the Final Rule includes new language at paragraph (c) clarifying that lead agencies are required to invite federal, state, Tribal, and local agencies and governments that are likely affected by a proposed action to participate as cooperating or participating agencies. The Final Rule also incorporates several other scoping-related changes to the previous NEPA regulations.

Environmental Consequences:

The Final Rule imposes certain changes to Section 1502.16 intended to ensure that agencies integrate environmental justice considerations into the analysis of environmental effects in an environmental impact statement (EIS). Language at paragraph (a)(13) of this section requires agencies to, “[w]here applicable,” analyze any “disproportionate and adverse human health and environmental effects on communities with environmental justice concerns.” In the Preamble, CEQ notes that agencies must consider only those effects that are “reasonably foreseeable,” and that agencies must determine which effects are relevant to address in an EIS on a case-by-case basis. Additionally, CEQ states that, while EISs generally must include an environmental justice analysis to ensure that decision makers consider disproportionate and adverse effects on these communities, not all proposed actions will have such effects.

Concluding Thoughts

The Final Rule includes several updates to the NEPA regulations intended to improve public engagement in the NEPA review process, including outreach to communities with environmental justice concerns and Tribal Nations. Some of these changes may, in practice, create a level of tension between fostering public engagement and facilitating streamlining of NEPA reviews, as increased collaboration could potentially elongate or complicate the process. As a result, the practical effect of these regulatory changes remains uncertain. Next, we will examine other significant updates to the NEPA regulations, such as those relating to mitigated findings of no significant impacts and mitigation obligations.

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