Revamping the NEPA Process

The White House ‘s proposed regulations will streamline the process while still protecting the environment.

Early on Friday, the White House’s Council on Environmental Quality (CEQ) released the proposed Phase II revisions of its NEPA regulations.  The CEQ proposal deftly threads the needle,  streamlining the NEPA process while  protecting the environment and disadvantaged communities.

The proposal is a clear improvement over both earlier versions: 1978 rules issued by the Carter Administration, and 2020 rules issued by the Trump Administration. “Phase II “revisions were already in the works when Congress played a wildcard at the beginning of June: rewriting NEPA itself as part of the debt ceiling bill.  That made redoing the NEPA rules trickier.


In terms of streamlining the process, the new rules incorporate the deadlines and page limits found in the Financial Responsibility Act. The inclusion of these statutory requirements is not notable in itself, but CEQ did not provide support for using possible ways to bene the rules.

The new rules also have several provisions that are intended to improve efficiency. Here are some of the important examples:

  • The proposal allow agencies to create categorical exclusions in planning documents rather than requiring a separate administrative process. (Categorical exclusions allow agencies to skip environmental analysis for actions that typically don’t harm the environment.) This will make it easier to exclude actions that really don;’t merit environmental assessments.
  • The proposal encourages agencies to develop innovative approaches to NEPA compliance to deal with “extreme environmental threats” such as sea level rise or increased wildfire risks. This should encourage agencies to find more efficient ways of analyzing responses to these mounting challenges.
  • The proposal emphasizes the importance of transparency and early engagement with stakeholder communities, other agencies, and state government. Experience has shown that early consultation can increase buy-in and allow objections to a project to be accommodated more easily. This can prevent gumming up the process later and will hopefully reduce the likelihood of litigation.

Environmental values.

The proposed rules contain numerous provisions promoting fuller consideration of environmental impacts. For example:

  • The proposal emphasizes that environmental assessments and impact statements are not merely paperwork requirements. Rather, they are intended to promote the agency’s consideration of the environment in its decision-making process.
  • The proposal restores language from the 1978 regulations that ensure the agencies consider the indirect and cumulative effects of their actions. This is likely to be controversial. The House attempted to limit the types of environmental effects covered by NEPA, but that part of the House bill did not make it into the final law.
  • Climate change examples appear repeatedly, making it clear that climate-related effects must be considered. This, too, will undoubtedly be controversial.
  • Mitigation will only be considered to reduce the significance of environmental effects when mitigation commitments are enforceable, and the proposal encourages  monitoring of the success of the mitigation efforts.
  • Categorical exclusions will continue to have exceptions for extraordinary circumstances, something that was not clear from the language of the debt ceiling bill.

Environmental justice.

The Biden Administration has worked to increase the focus on the environmental woes of disadvantaged communities. Attention to environmental justice is a theme of the proposed rules:

  • Impacts on disadvantaged communities are flagged as objects of concern having the potential to require deeper analysis, and the effects of all alternatives on those communities must be disclosed. Mitigation measures may be needed to deal with those effects.
  • There are also repeated calls for engagement with disadvantaged communities throughout the process.
  • In addition, the proposal contains several provisions addressed to the needs of Indian tribes. There are special provisions about their participation in the NEPA process, and one that exempts the Tribe’s own activities from NEPA.

Striking a balance.

There is a broad consensus that the NEPA process is badly needs streamlining. Conservatives and industry have taken that position for years. That view is now shared, however, by advocates of clean energy and climate resilience. The current proposal pursues streamlining with minimal impact on environmental protection and environmental justice.

The Trump Administration used streamline as an excuse to curtail analysis of environmental impacts, focusing only on the most immediate and downplaying issues like climate change. The current proposal rejects that philosophy.  It requires only that impacts be reasonably foreseeable. Streamlining efforts are focused on the process rather than the substance of environmental assessment.

We are likely to see complaints on both sides— but especially from those who want more streamlining regardless of the impacts on the environment or disadvantaged communities.  We may also see complaints from groups that feel the current system gives them more leverage to protect the environment or the interests of disadvantaged communities.

CEQ wisely refrained from pursuing streamlining at all cost, jettisoning the value of honestly examining environmental consequences. CEQ was also aware that, unless the permit process for clean energy projects is streamlined, both the environmental and disadvantaged communities will be more exposed to the ravages of climate change. This was not an easy balance to strike, and the inept drafting of the most recent NEPA amendments only made it harder.

To my mind, the proposal is an important step forward. This is not to say that I think it’s perfect. I will discuss some initial thoughts about possible improvements in my next post. But the CEQ proposal will improve the NEPA process in tangible ways,.








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Reader Comments

4 Replies to “Revamping the NEPA Process”


    Dan, it is beyond belief that a planet with 8 billion people doesn’t have any intellectual leaders who can meet the challenges of change so we can produce and implement solutions in time to save us from global warming extermination.

    That must be why all the UFOs are flying around (we can’t figure them out either) waiting for us to fail to the point where they have a planet to document our failures about so they can write their own books to sell to other aliens back home, probably with the conclusion that all we could do was point fingers at each other so we can blame all our failures on each other while we maximize our personal wealth regardless of destructive.

    Historians Will and Ariel Durant probably realized that there really is no difference between the motivations of politicians and intellectuals.

  2. I am somewhat relieved that the notice of proposed rulemaking for implementing Phase 2 if the CEQ NEPA regulations officially came out in the Federal Register Monday, July 31, 2023. Comments are due to CEQ September 29, 2023. We can analyze the proposed rule, but our conclusions must be based on the basis of the final rule when it comes out, possibly in October 2023. There will be four virtual public meetings each scheduled for three hours duration: August 26, August 30, September 11, and September 21. To register, check CEQ’s website at

  3. P.S. You folks might consider adapting one of the solutions from your own GGSC:

    FROM GGSC EDGE: “Climate, Hope and Science” From the Science of Happiness

    KELTNER: What do you think are some of the things that people can do today in this moment of tapping into that sense of personal power?

    SOLNIT: One of the best answers I ever saw came while I was sitting on the floor of a sort of radical space in Paris while the Paris Climate Treaty was being negotiated or sitting there with a very burnt out Bill McKibben, because he worked so hard for so long for climate action. And somebody said, “What’s the best thing I can do as an individual?” And he gives his answer a lot. He said, “Stop being an individual.”

    Individually, we mostly don’t have a lot of power. Together, the ants can move the elephant.

  4. I have been involved with writing comments for NEPA projects for many years now as a volunteer for environmental organizations. I have several concerns about what this “streamlining” of the process means for the many of us who wish to protect the interests of the environment. In my experience working as a citizen, I have seen changes already being made that make this work harder, and the intended environmental protections of NEPA failing.

    First, the concept of shortening the time in which comments may be submitted by the public. While an agency may take years or more to develop a complex NEPA argument for some project, citizen groups are given 30 days to respond to the released proposal. There may be some additional time allotted if a scoping period is done, and that gives the agency time to be ready to counter environmental arguments, while NGOs still only have 30 days (down from 45) to evaluate the final options that are presented.

    Second, the agencies have paid staff that work full time on these projects. Citizens and NGOs are often unpaid volunteers with limited time to work on these projects (we have other jobs). We are also required to give “substantive” comments rather than raise broader concerns about environmental impacts which are not addressed, or about our specific uses of public lands. We work very hard to overcome these issues, but we are still countering agencies and industry with large databases and large pockets to draw from.

    A third point is the scope of the projects that the agencies are proposing. For example, it used to be that projects involved a relatively small portion of say, a national forest. Now there are efforts to create a NEPA that includes several national forests and crosses many ecosystems, in order to allow future projects to fall under this one NEPA. (Example: This is happening in both the Forest Service and the BLM. A NEPA of this scope it much harder to analyze, especially for NGOs that may not have the regional and national staffing that the agencies do.

    If the NEPA process needs streamlining, it should not come with the detrimental effect of limiting public input and at the cost of not evaluating in detail the environmental effects. Yet this is what I see happening with this process, and as you noted, “The Trump Administration used streamline as an excuse to curtail analysis of environmental impacts”. This is counter to what “40 C.F.R. § 1500.2 states: ‘Federal agencies shall to the fullest extent possible: … (d) Encourage and facilitate public involvement in decisions which affect the quality of the human environment.'” ( The use of “streamlining” and “transparency” may be more word-candy than the actual intent of these revisions.

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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

READ more