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1) July 28 [WH press release] -- Biden-⁠Harris Administration Proposes Reforms to Modernize Environmental Reviews, Accelerate America’s Clean Energy Future, and Strengthen Public Input

Today, the White House Council on Environmental Quality (CEQ) released a proposed rule that would fully implement and build upon new permitting efficiencies directed by Congress under the Fiscal Responsibility Act of 2023. CEQ’s Bipartisan Permitting Reform Implementation Rule would modernize and accelerate environmental reviews under the National Environmental Policy Act (NEPA), encourage early community engagement, accelerate America’s clean energy future, strengthen energy security, and advance environmental justice. Thanks to President Biden’s Permitting Action Plan and $1 billion included in the Inflation Reduction Act to help expedite federal agency permitting, environmental impact statements under the Biden-Harris Administration are already getting completed more quickly than they ever did under the previous Administration.

To meet President Biden’s historic clean energy and infrastructure goals, a core component of Bidenomics, the Biden-Harris Administration is undertaking an all-of-government effort to accelerate federal permitting while ensuring strong environmental protections and robust community engagement. Under President Biden’s leadership, CEQ has already clarified and restored basic safeguards for environmental reviews and issued guidance to agencies on how to account for climate change and greenhouse gas emissions, so fewer projects get tangled up in litigation and more projects get built right the first time.

The reforms announced today will continue to advance the Biden-Harris Administration’s strategy for ensuring that federal environmental reviews and permitting processes are effective, efficient, and transparent, guided by the best available science to promote positive environmental and community outcomes, and shaped by early and meaningful public engagement and input.
The Bipartisan Permitting Reform Implementation Rule would fully implement the statutory reforms to NEPA included in the Fiscal Responsibility Act, including clarifying the roles of lead and cooperating agencies, setting deadlines and page limits, and adding other requirements to ensure timely and unified environmental reviews. Consistent with the Fiscal Responsibility Act, the proposed rule also includes a process for a federal agency to use another agency’s categorical exclusion, unlocking faster reviews for projects that have few environmental effects.

In addition to meeting the requirements of the Fiscal Responsibility Act, the proposed rule improves efficiency and certainty for projects and stakeholders by creating new tools to accelerate and improve environmental review, including encouraging agencies to consider a project’s mitigation measures to reduce the level of environmental review required, additional mechanisms for agencies to establish categorical exclusions, and enabling wider adoption of programmatic environmental reviews to expedite broad categories of projects. These reforms will help accelerate everything from wildfire management and electric vehicle charging infrastructure to transmission and offshore wind.

Overall, the proposed rule’s reforms will: . . .
This is “Phase 2” of CEQ’s NEPA rulemaking. Last year, CEQ finalized a targeted regulation that restored three basic elements of its NEPA regulations, including a reaffirmation that federal agencies must evaluate all relevant environmental effects—including those associated with climate change—during environmental reviews.

The proposed rule will be open for public comment through Friday, September 29, 2023 via Regulations.gov. CEQ will hold virtual public meetings on the proposal on Saturday, August 26; Wednesday, August 30; Monday, September 11; and Thursday, September 21. Information about joining these public meetings will be available at www.nepa.gov.


2) July 31 -- The Council on Environmental Quality (CEQ) is proposing this “Bipartisan Permitting Reform Implementation Rule” to revise its regulations for implementing the procedural provisions of the National Environmental Policy Act (NEPA), including to implement the Fiscal Responsibility Act's amendments to NEPA. CEQ invites comments on the proposed revisions by September 29, 2023.

CEQ proposes the revisions to provide for an effective environmental review process that promotes better decision making; ensure full and fair public involvement; provide for an efficient process and regulatory certainty; and provide for sound decision making grounded in science, including consideration of relevant environmental, climate change, and environmental justice effects. CEQ proposes these changes to better align the provisions with CEQ's extensive experience implementing NEPA; CEQ's perspective on how NEPA can best inform agency decision making; longstanding Federal agency experience and practice; NEPA's statutory text and purpose, including making decisions informed by science; and case law interpreting NEPA's requirements.

Congress enacted NEPA in 1969 by a unanimous vote in the Senate and a nearly unanimous vote in the House to declare an ambitious and visionary national policy to promote environmental protection for present and future generations. President Nixon signed NEPA into law on January 1, 1970. NEPA seeks to “encourage productive and enjoyable harmony” between humans and the environment, recognizing the “profound impact” of human activity and the “critical importance of restoring and maintaining environmental quality” to the overall welfare of humankind. 42 U.S.C. 4321, 4331.

Furthermore, NEPA seeks to promote efforts that will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of people, making it the continuing policy of the Federal Government to use all practicable means and measures to create and maintain conditions under which humans and nature can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations of Americans. 42 U.S.C. 4331(a). It also recognizes that each person should have the opportunity to enjoy a healthy environment and has a responsibility to contribute to the preservation and enhancement of the environment. 42 U.S.C. 4331(c).

NEPA requires Federal agencies to interpret and administer Federal policies, regulations, and laws in accordance with NEPA's policies and to consider environmental values in their decision making. 42 U.S.C. 4332. To that end, section 102(2)(C) of NEPA requires Federal agencies to prepare “detailed statements,” referred to as environmental impact statements (EISs), for “every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment” and, in doing so, provide opportunities for public participation to help inform agency decision making. 42 U.S.C. 4332(2)(C). The EIS process embodies the understanding that informed decisions are better decisions and lead to better environmental outcomes when decision makers understand, consider, and publicly disclose environmental effects of their decisions. The EIS process also enriches understanding of the ecological systems and natural resources important to the Nation and helps guide sound decision making, such as decisions on infrastructure and energy development, in line with high-quality information, including the best available science, information and data, as well as the environmental design arts.

In many respects, NEPA was a statute ahead of its time and remains relevant and vital today. It codifies the common-sense idea of “look before you leap” to guide agency decision making, particularly in complex and consequential areas, because conducting sound environmental analysis before agencies take actions reduces conflict and waste in the long run by avoiding unnecessary harm and uninformed decisions. See, e.g., 42 U.S.C. 4332. It establishes a framework for agencies to ground decisions in sound science and recognizes that the public may have important ideas and information on how Federal actions can occur in a manner that reduces potential harms and enhances ecological, social, and economic well-being. See, e.g., id.

On June 3, 2023, President Biden signed the Fiscal Responsibility Act of 2023 (FRA) into law, which included amendments to NEPA. Specifically, the FRA amended section 102(2)(C) and added sections 102(2)(D) through (F) and sections 106 through 111. The amendments in section 102(2)(C) largely codify longstanding principles that EISs should include discussion of reasonably foreseeable environmental effects of the proposed action, reasonably foreseeable adverse environmental effects that cannot be avoided, and a reasonable range of alternatives to the proposed action. Section 102(2)(D) requires Federal agencies to ensure the professional integrity of the discussion and analysis in an environmental document; section 102(2)(E) requires use of reliable data and resources when carrying out NEPA; and section 102(2)(F) requires agencies to study, develop, and describe technically and economically feasible alternatives.

Section 106 adds provisions for determining the appropriate level of NEPA review. . . . Section 106 also largely codifies the current CEQ regulations and longstanding practice with respect to the use of categorical exclusions (CEs), environmental assessments (EAs), and EISs, as modified by the new provision expressly permitting agencies to adopt CEs from other agencies established in section 109 of NEPA.

Section 107 addresses timely and unified Federal reviews, codifying existing practice with a few minor adjustments, including provisions clarifying lead, joint-lead, and cooperating agency designation, generally requiring development of a single environmental document, directing agencies to develop procedures for project sponsors to prepare EAs and EISs, and prescribing page limits and deadlines similar to current requirements. Section 108 codifies time lengths and circumstances for when agencies can rely on programmatic environmental documents without additional review, and section 109 allows a Federal agency to use another agency's CE. Section 111 adds a variety of definitions.
This proposed rule would update the regulations to address how agencies should implement NEPA consistent with the amendments made by the FRA. . . . CEQ's proposed changes fall into five general categories.

-- First, CEQ proposes revisions to implement the amendments to NEPA made by the FRA.
-- Second, where CEQ determined it made sense to do so, CEQ proposes to amend provisions, which the 2020 regulations revised, to revert to the language from the 1978 regulations that was in effect for more than 40 years, subject to minor revisions for clarity.
-- Third, CEQ proposes to remove certain provisions added by the 2020 rule that CEQ considers imprudent or legally unsettled.
-- Fourth, CEQ proposes to amend certain provisions to enhance consistency and provide clarity to improve the efficiency and effectiveness of the environmental review process.
-- Fifth, CEQ proposes revisions to the regulations to implement decades of CEQ and agency experience implementing and complying with NEPA, foster science-based decision making—including decisions that account for climate change and environmental justice—improve the efficiency and effectiveness of the environmental review process, and better effectuate NEPA's statutory purposes.
FRN: https://www.federalregister.gov/d/2023-15405 [65 pages]

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