Rebecca Hays Barho Discusses Proposed NEPA Changes

Rebecca Hays Barho was quoted in the Law360 story, “Projects Would Face Stiffer Scrutiny Under Biden NEPA Rule” (subscription required). The article examines the proposal from the Biden White House to reverse certain Trump administration changes to National Environmental Policy Act (NEPA) regulations and the increased scrutiny that project proponents might face from federal agencies regarding climate change and environmental justice. The proposal is the first phase of a planned two-phase revision.

The Council on Environmental Quality (CEQ) signaled in the proposed rule its intent to generally undo many of the Trump administration's changes to NEPA regulations. This may be somewhat of a return to normal for regulated entities, as the Trump era updates were the first time NEPA regulations had been revised in more than four decades.

Despite this, CEQ seems to be signaling that the move won't lead to a complete return to former conditions and that those being regulated should prepare for a higher level of scrutiny in certain areas.

Commenting on the revisions, Rebecca said, “CEQ's proposal would remove language from the 2020 rule that defines the ‘effects’ agencies must consider in their review processes as those that are reasonably foreseeable and have a reasonably close causal relationship.”

She added, “CEQ's proposed regulations make it clear that just because something happens later in time, or may not be closely causally related, it doesn't necessarily mean that it shouldn't be analyzed.”

Rebecca also mentioned “there could be additional confusion” on how best to draft NEPA documents while the Trump rules are still in effect. Since there is likely to be continued litigation over any replacement rule, she said, “It will be a balancing act to make sure an application passes muster.”

To help mitigate this, she noted that project proponents can consider ensuring that where current NEPA regulation terminology is used, the ultimate NEPA document addresses the types of impacts that would be covered under the newly proposed regulations. “Whether in footnotes or additional analysis, it is essential to ensure that you've complied, perhaps not with the terminology in the proposed regulations, but certainly with the intent.”

She stated, “That means paying explicit attention to concerns like climate change and environmental justice,” areas the Biden administration has focused on as important factors in assessing any project coming to the federal government for approval.

One final change in the proposal is that federal agencies could consider NEPA regulations a floor for their requirements, rather than a ceiling, as the Trump administration did.

“That could cause some confusion for the regulated community and potentially project delays, if agencies take too much leeway with that,” Rebecca continued. “But that's something that we'll just have to watch as it plays out.”