Navigating NEPA Changes:  Congressional, Regulatory, and Supreme Court Revisions and Rulings

Description

Over the past few years, the National Environmental Policy Act of 1969 (NEPA) and its associated implementing regulations, issued by the White House Council on Environmental Quality (CEQ), have undergone substantial changes, marking the most transformative period in NEPA's 50+ year history.

Congress amended the NEPA Statute for the first time ever in language added to the Fiscal Responsibility Act of 2023 which was signed into law in June, 2023, and CEQ recently finalized additional substantive changes to the implementing regulations for NEPA that went into effect for new NEPA assessments that begin on or after July 1, 2024. These changes include numerous reversals of changes made to the regulations made by previous administration in their 2020 rulemaking, in addition to adding many new requirements for NEPA analysis including for climate change and environmental justice analyses.

In addition to this flurry of statutory and regulatory changes, the U.S. Supreme Court has issued two important rulings in 2024 that have important implications for the implementation of federal environmental laws including NEPA. In their opinion in the case Loper Bright Enterprises. V. Raimondo, the Court overturned so-called Chevron deference that has long been interpreted as federal courts allowing federal agencies fairly wide leeway in setting regulations for federal laws to interpret vague or unclear language and direction from Congress as written in a statute. The second decision – Corner Post, Inc. v. Board of Governors of the Federal Reserve System - involved a decision where the Court greatly expanded the time period in which plaintiffs’ have the ability to challenge a federal agency decision, including rulemakings and approvals based on NEPA reviews. Also, for the first time in many years, the Supreme Court has accepted a petition to hear a NEPA-specific case in the next court term – Seven County Infrastructure Coalition v. Eagle County – that involves important questions about scope requirements for indirect impacts analysis in situations where a federal agency has limited control and responsibility over environmental effects.

Given the scope, complexity, and implications of these changes to the NEPA Statute, CEQ Implementing Regulations, and recent and upcoming Supreme Court decisions, there will be considerable uncertainty and debate about their implications for NEPA practice. This workshop aims to clarify these issues as much as possible, providing participants with a comprehensive understanding of these changes to NEPA practice and their implications for practitioners. While some of the changes and implications are straightforward, others require in-depth analysis and discussion, and are likely to continue to generate uncertainty and likely litigation for many years into the future.

Objectives

Upon completing this workshop, participants will be able to:

  • Comprehensively understand and interpret what the NEPA Statute amendments, CEQ NEPA Implementing Regulations revisions, and recent and pending Supreme Court decisions mean and require for NEPA practice

  • Distinguish between unambiguous, clear requirements in these revisions and case law changes, versus new provisions that trigger additional uncertainty in how they will be implemented

  • Develop a framework for risk management that can be used to determine how best to proceed in implementing these changes in NEPA practice and interpretation, both for project proponents and government agencies

Content

The basic format of this interactive workshop includes the following components:

  • Unit 1: Brief background on recent changes made to the CEQ NEPA Implementing Regulations in the current and previous administrations as well as by Congress through the NEPA Statute amendments contained in the Fiscal Responsibility Act of 2023

  • Unit 2: Comprehensive overview of the key revisions to the CEQ NEPA Implementing Regulations made in CEQ’s Phase 2 rulemaking effective on July 1, 2024 and recent and pending Supreme Court decisions affecting NEPA practice

  • Unit 3: Guidance and discussion on suggested approaches to successfully navigate these numerous changes to NEPA practice from both a NEPA practitioners and project proponent perspective. 

 

Audience

Participants for this training generally include resource specialists, team leaders, project managers, decisionmakers, attorneys, writers and editors, and other agency professionals who already have some NEPA experience and need to understand these important changes to how NEPA is implemented to fully execute their responsibilities in an optimal manner.

Process

This is an interactive workshop designed to build an overall understanding of the implications of the recent reforms to NEPA implementation. This workshop consists of a carefully designed combination of the following:

  • 70% Lecture

  • 30% Discussion

Materials

Participants receive the following:

  • Slide presentation handouts

  • Student reference manual – includes relevant statutory and regulatory documents