Loading...
City of Dubuque Comments on Proposed NEPA ChangesCity of Dubuque ITEM TITLE: SUMMARY: SUGGESTED DISPOSITION: Copyrighted March 2, 2020 Consent Items # 10. City of Dubuque Comments on Proposed NEPA Changes City Manager transmitting a draft letter from Mayor Roy D. Buol offering the City's comments to the Council on Environmental Quality regarding the Council on Environmental Quality's Proposal to Change Implementing Regulations for the National Environmental Policy Act (NEPA). Suggested Disposition: Receive and File ATTACHMENTS: Description City of Dubuque Comments on Proposed NEPA Changes-MVM Memo Fact Sheet CEQ NEPA Changes Staff Memo Mayor letter Fact Sheet Timelines NEPA Article NEPA Advisory APA NEPA News Release APAASFPM Joint Statement NEPA Type City Manager Memo Supporting Documentation Staff Memo Supporting Documentation Supporting Documentation Supporting Documentation Supporting Documentation Supporting Documentation Supporting Documentation Masterpiece on the Mississippi TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: City of Dubuque Comments on Proposed NEPA Changes DATE: February 25, 2020 Dubuque kritil All-A.aia City 111111 2007.2012.2013 2017*2019 Planning Services Manager Laura Carstens is transmitting a draft letter from Mayor Roy Buol offering the City's comments to the Council on Environmental Quality regarding the Council on Environmental Quality's Proposal to Change Implementing Regulations for the National Environmental Policy Act (NEPA). Staff recommends that the City of Dubuque join the American Planning Association and Association of State Floodplain Managers to urge the Trump administration not to abandon review of development and infrastructure projects to protect the public from fiscal, environmental and health consequences of climate change and natural disasters. Michael C. Van Milligen MCVM:jh Attachment cc: Crenna Brumwell, City Attorney Teri Goodmann, Assistant City Manager Cori Burbach, Assistant City Manager Laura Carstens, Planning Services Manager EXECUTIVE OFFICE OF THE PRESIDENT COUNCIL ON ENVIRONMENTAL QUALITY WASHINGTON, D.C. 20503 Fact Sheet: CEQ's Proposal to Modernize its NEPA Implementing Regulations Today, the Council on Environmental Quality (CEQ) announced a notice of proposed rulemaking (NPRM) titled "Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act." The NPRM will appear in the Federal Register on Friday, January 10, 2020, for public comment. A pre -publication version is available HERE. For the first time in over 40 years, CEQ is proposing to modernize its National Environmental Policy Act (NEPA) regulations. The outdated regulations have slowed and impeded the development of needed infrastructure in communities across the nation. Environmental impact statements (EISs) for Federal highway projects have averaged over 7 years to complete and many reviews have taken a decade or more. CEQ's proposed rule would modernize and clarify the CEQ regulations to facilitate more efficient, effective, and timely NEPA reviews by simplifying and clarifying regulatory requirements, incorporating key elements of the One Federal Decision policy, codifying certain case law and CEQ guidance, updating the regulations to reflect current technologies and agency practices, eliminating obsolete provisions, and improving the format and readability of the regulations. The proposed rule seeks to reduce unnecessary paperwork and delays, and to promote better decision -making consistent with NEPA's statutory requirements. Background: The National Environmental Policy Act (NEPA), signed into law in 1970, is a procedural statute that requires Federal agencies to assess the environmental impacts of proposed major Federal actions. The Council on Environmental Quality (CEQ) issued regulations for Federal agencies to implement NEPA in 1978. CEQ has not comprehensively updated these regulations in over 40 years, and has made only one limited substantive amendment in 1986. In 2017, President Trump issued Executive Order 13807 establishing a One Federal Decision policy, including a two-year goal for completing environmental reviews for major infrastructure projects, and directing CEQ to consider revisions to modernize its regulations. In 2018, CEQ issued an Advance Notice of Proposed Rulemaking (ANPRM) requesting comment on potential updates to its regulations. CEQ received over 12,500 comments, which informed CEQ's proposed rule. CEQ has found that the average length of an EIS is over 600 pages, and that the average time for Federal agencies to conduct these NEPA reviews is four and a half years. However, reviews for some projects have taken much longer. NEPA analyses are frequently challenged in the courts, and while Federal agencies ultimately prevail in many cases, litigation can unnecessarily delay and increase costs for important projects such as needed transportation, water, and other infrastructure that benefit States, Tribes, and local communities. The increased 1 costs and complexity of NEPA reviews and litigation make it very challenging for large and small businesses to plan, finance, and build projects in the United States. Overview of Key Elements of the Proposed Rule: • Modernize, Simplify and Accelerate the NEPA Process o Establish presumptive time limits of two years for completion of environmental impact statements (EISs) and one year for completion of environmental assessments (EAs) o Specify presumptive page limits o Require joint schedules, a single EIS, and a single record of decision (ROD), where appropriate, for EISs involving multiple agencies o Strengthen the role of the lead agency and require senior agency officials to timely resolve disputes to avoid delays o Promote use of modern technologies for information sharing and public outreach • Clarify Terms, Application and Scope of NEPA Review o Provide direction regarding the threshold consideration of whether NEPA applies to a particular action o Require earlier solicitation of input from the public to ensure informed decision - making by Federal agencies o Require comments to be specific and timely to ensure appropriate consideration o Require agencies to summarize alternatives, analyses, and information submitted by commenters and to certify consideration of submitted information in the ROD o Simplify the definition of environmental "effects" and clarify that effects must be reasonably foreseeable and have a reasonably close causal relationship to the proposed action o State that analysis of cumulative effects is not required under NEPA o Clarify that "major Federal action" does not include non -discretionary decisions and non -Federal projects (those with minimal Federal funding or involvement) o Clarify that "reasonable alternatives" requiring consideration must be technically and economically feasible • Enhance Coordination with States, Tribes, and Localities o Reduce duplication by facilitating use of documents required by other statutes or prepared by State, Tribal, and local agencies to comply with NEPA o Ensure appropriate consultation with affected Tribal governments and agencies o Eliminate the provisions in the current regulations that limit Tribal interest to reservations • Reduce Unnecessary Burdens, Delays o Facilitate use of efficient reviews (categorical exclusions (CEs), environmental assessments) o Allow agencies to establish procedures for adopting other agencies' CEs 2 o Allow applicants/contractors to assume a greater role in preparing EISs under the supervision of an agency Request for Public Comment: • CEQ requests public comment on the NPRM. Comments should be submitted on or before March 10, 2020. • You may submit comments via any of the following methods: o Go to https://www.regulations.gov/ and follow the online instructions for submitting comments to Docket ID No. CEQ-2019-0003. o By Fax: 202-456-6546 o By mail: ■ Council on Environmental Quality 730 Jackson Place NW Washington, DC 20503 Attn: Docket No. CEQ-2019-0003 Public Engagement: • CEQ will host two public hearings in Denver, CO and Washington, DC. o Additional details concerning the hearings and other public engagement may be found HERE. Additional Information: • NEPA applies to a broad range of Federal actions, including Federally funded construction projects, plans to manage and develop Federal lands, and Federal authorizations of non -Federal activities such as licenses and permits. NEPA encompasses a variety of activities, including projects involving the construction of roads, bridges, highways, and airports, conventional and renewable energy production and distribution, electricity transmission, water infrastructure, and broadband deployment, as well as management activities on public lands. Such management activities include leases and authorizations for energy production, mining, grazing, and other activities; management of national parks and forests; and environmental restoration projects. • Under the CEQ regulations, there are three levels of environmental review: environmental impact statements (EISs), environmental assessments (EAs), and categorical exclusions (CEs). Annually agencies prepare approximately 170 EISs and 10,000 EAs, and apply categorical exclusions to approximately 100,000 actions. 3 EXECUTIVE OFFICE OF THE PRESIDENT COUNCIL ON ENVIRONMENTAL QUALITY WASHINGTON, D.C. 20503 Length of Environmental Review for Federal Highway Projects 40 1 More than 6 Years 60% Under 2 Years 7a/a 2 to 4 Years 15a/0 4 to 6 Years 180/0 Council on Environmental Quality (2018). EIS Timeline Database. CEQ_EIS_Timelines.xlsx. Available from https://ceq.doe.gov/nepa-practice/eis- timelines.html 4 Masterpiece on the Mississippi TO: Michael Van Milligen, City Manager FROM: Laura Carstens, Planning Services Manager SUBJECT: City of Dubuque Comments on Proposed NEPA Changes DATE: February 25, 2020 Dubuque bend AII•Aaterica City 2007*2012*2013 2017*2019 This memo transmits a draft letter from Mayor Roy Buol offering the City's comments to the Council on Environmental Quality (CEQ) regarding the CEQ's Proposal to Change Implementing Regulations for the National Environmental Policy Act (NEPA). Supporting documentation and background information is enclosed. NEPA, signed into law in 1970, is a procedural statute that requires Federal agencies to assess the environmental impacts of proposed major Federal actions. The enclosed NEPA Advisory notes: "CEQ is proposing revisions to almost every section of the NEPA implementing regulations. Some of these changes should be welcome updates and improvements to the implementation of NEPA, while others arguably narrow the scope of environmental review for many projects and will likely be more controversial." CEQ's Proposal to Modernize its NEPA Implementing Regulations is reviewed in the enclosed CEQ NEPA Changes fact sheet and CEQ Timelines fact sheet. Commentary on the CEQ proposal is provided in the enclosed NEPA article and NEPA Advisory. Staff recommends that the City of Dubuque join the American Planning Association (APA) and Association of State Floodplain Managers (ASFPM) urge the Trump administration not to abandon review of development and infrastructure projects to protect the public from fiscal, environmental and health consequences of climate change and natural disasters. The January 9, 2020 APA news release and the APA and ASFPM Joint Statement on NEPA Regulation Changes are enclosed. Enclosures cc: Crenna Brumwell, City Attorney Teri Goodmann, Assistant City Manager Gus Psihoyos, City Engineer Denise Blakely Ihrig, Water Department Manager 1 Masterpiece on the Mississippi Council on Environmental Quality 730 Jackson Place NW Washington, DC 20503 Attn: Docket No. CEQ-2019-0003 Dubuque AI-Aneriea 12ly 1,34 1Iii 1' 2007.2012.2013 2017*2019 March 2, 2020 Office of the Mayor City Hall 50 West 13th Street Dubuque, IA 52001-4845 www.cityofdubuque.org RE: CEQ's Proposal to Change NEPA Implementing Regulations Dear Members of the Council on Environmental Quality: The City of Dubuque understands the importance of the National Environmental Policy Act (NEPA), signed into law in 1970, as a procedural statute that requires Federal agencies to assess the environmental impacts of proposed major Federal actions. The City also understands the fiscal, environmental and health consequences of climate change and natural disasters. Dubuque is located on the Mississippi River at the juncture of Iowa, Wisconsin and Illinois. Due in part to climate change, our community has been subject to more frequent and severe flash flooding. Dubuque's 6.5 square mile Bee Branch Watershed has been hit hard by flash flooding during significant rain events with six (6) Presidential disaster declarations in 12 years. This watershed includes the city's most developed areas where over 50% of Dubuque residents either live or work. The area encompasses historic neighborhoods offering some of the community's most affordable workforce housing. The City of Dubuque has made infrastructure projects a high priority and is committed to the $232 million, 20-year Bee Branch Watershed Flood Mitigation Project, a multi- faceted approach to addressing the severe and frequent flash flooding experienced in the watershed. The City has used federal funds and obtained federal permits for the Bee Branch Watershed Flood Mitigation Project, and is familiar with the NEPA review process. NEPA ensures that Federal agencies consider environmental, economic, and social impacts of federal actions, such as permits, licenses, and funding. Considering each of these impacts is important and helps contribute to a sustainable community. The City of Dubuque supports improvements to the NEPA process, but this effort should result in sustainable, equitable, and effective implementing regulations. In response to the proposed overhaul of the NEPA regulations, the City of Dubuque, Iowa joins the American Planning Association (APA) and Association of State Floodplain Managers Service People Integrity Responsibility Innovation (ASFPM) urge the Trump administration not to abandon review of development and infrastructure projects to protect the public from fiscal, environmental and health consequences of climate change and natural disasters. The January 9, 2020 APA news release and the APA and ASFPM Joint Statement on NEPA Regulation Changes are enclosed for the record. Two improvements that the City of Dubuque would advocate for are: 1) shortening of the timelines required so that projects can be completed in a reasonable time -frame, and 2) in support of that effort please provide the federal and state agencies the resources and staffing they need so they can complete their responsibilities in a timely fashion. On behalf of the Dubuque City Council, and the nearly 60,000 residents of Dubuque, I respectfully request consideration of these comments from the City of Dubuque on the Council on Environmental Quality (CEQ) Proposal to Change NEPA Implementing Regulations. Thank you. Sincerely, Roy DBuol Mayor Enclosures cc: Dubuque City Council Members Michael C. Van Milligen, City Manager Crenna Brumwell, City Attorney Teri Goodmann, Assistant City Manager EXECUTIVE OFFICE OF THE PRESIDENT COUNCIL ON ENVIRONMENTAL QUALITY WASHINGTON, D.C. 20503 FACT SHEET: CEQ REPORT ON ENVIRONMENTAL IMPACT STATEMENT TIMELINES Background: • On August 15, 2017, President Trump signed Executive Order 13807, which set a goal of completing reviews and authorizations for major infrastructure projects within two years. • To assist agencies in streamlining their NEPA processes, the Council on Environmental Quality (CEQ) has compiled data on the timelines for Federal agencies to complete environmental impact statements (EISs) pursuant to NEPA. • CEQ reviewed 1,161 EISs for which a notice of availability of a final EIS was published between January 1, 2010 and December 31, 2017, and a record of decision (ROD) was issued by June 7, 2018. • CEQ assessed the length of time from issuance of a notice of intent (NOI) to prepare an EIS, through publication of a draft and final EIS, to publication of a ROD. • The report is available HERE and the underlying data can be accessed HERE. Findings: • CEQ found that across all Federal agencies, the average EIS completion time (from NOI to ROD) was 4 and a half years. Of the 1,161 EISs reviewed: o Half took longer than 3 years and 7 months to complete; o One quarter of the EISs took more than 6 years to complete; and o One quarter took less than 2 years and 2 months to complete. • Average Completion Time by Stage: o Notice of Intent to a Draft EIS — 2 years and 7 months; o Draft EIS to Final EIS — 1 year and 5 months; and o Final EIS to ROD — 5 months. December 2018 Battle Begins as Administration Outlines National Environmental Policy Act Changes January 9, 2020 Pam McFarland Proposed Trump Administration NEPA changes are intended to speed infrastructure projects such as gas pipelines, but opponents say truncated environmental reviews are a key climate change risk. Source: Watershed Institute The first major overhaul of the National Environmental Policy Act (NEPA) in 40 years would make it easier for major federal construction projects to move forward, proponents say, but legal challenges are expected from environmental groups who say proposed changes would gut the project environmental review process and exacerbate the effects of climate change. The administration released on Dec. 9 a draft of its notice of proposed rulemaking in response to a 2017 executive order from President Donald Trump calling for a NEPA review and modernization to enable more infrastructure projects to be built. In a call with reporters, Council on Environmental Quality Chair Mary Neumayr said, "over time, implementation of NEPA has become increasingly complex and time-consuming...the proposed rule seeks to reduce paperwork and delays and promote better decision -making, consistent with NEPA's environmental policy." Climate Change Risk Downplayed Key provisions include limiting the time for completion of environmental impact statements to two years, and one year for environmental assessments; strengthening the role of lead agencies when multiple agencies are involved; soliciting public input earlier in the NEPA process; clarifying that suggested "reasonable alternatives" be technically and economically feasible; and enabling contractors and applicants greater input in preparing environmental impact statements. The proposal also would not require agencies to consider the impacts that projects might have on contributing to climate change. Former President Richard Nixon signed NEPA into law in 1970, with the council developing regulations for federal implementation of the law in 1978 that was designed to ensure that the environmental impacts of projects requiring a federal permit --from pipelines to highways and airports to wastewater treatment plants —are considered as part of the decision to allow projects to be built. However, administration officials say that the NEPA process has become increasingly costly, complex, and can delay needed projects from obtaining necessary permits for years. Furthering Agendas Construction groups applauded the proposal, which they say would enable important infrastructure projects to be built and put more workers on jobsites. Battle Begins as Administration Outlines National Environmental Policy Act Changes "The problem with the current environmental review process is that it long ago stopped being about evaluating the environmental impacts of a proposed project and has become a way for special interest groups to further their agenda by holding needed infrastructure and development projects hostage to countless lawsuits and delays," says Stephen Sandherr, Associated General Contractors of America CEO. American Road & Transportation Builders Association president David Bauer notes that it can take up to seven years to complete the NEPA process for a new federal -aid project. "That's too long," he says. Terry O'Sullivan, general president of the Laborers' International Union of North America, says that its members have experienced "endless delays" on major infrastructure projects, and that the NEPA overhaul would "modernize the permitting process for energy and transportation projects and speed up the creation of good jobs while maintaining the underlying regulations that ensure that the environment and communities are protected." But reaction from environmental advocates was swift, and furious. Take --home Exams Former U.S. Environmental Protection Agency Administrator Gina McCarthy, now president and CEO of the Natural Resources Defense Council, said in a statement, "While our world is burning, President Trump is adding fuel to the fire by taking away our right to be informed and to protect ourselves from irreparable harm." She said environmental groups will use every "tool in our toolbox" to prevent the proposal from becoming final. Sen. Tom Carper, top Democrat on the Environment and Public Works Committee was particularly troubled by the proposal's provisions that would enable companies to prepare their own impact statements. "We should not be giving self -graded take-home exams on polluting companies," he said in a statement. For example, CEQ's own numbers indicate that more than 95% of federal projects move forward with only minimal environmental review, the Partnership Project says, stating that less than 1% of projects require a detailed environmental impact statement, and the average time to complete the review is four and a half years. But at a Dec. 9 news conference at the White House, officials noted that the proposal relates solely to the process of environmental review; it does not change the underlying bedrock environmental laws such as the Clean Air Act, The Clean Water Act and the Endangered Species Act. The proposal will be published in the Jan. 10 Federal Register, with the public having 60 days to comment on the changes. January 15, 2020 CEQ Proposes Comprehensive Changes to NEPA Regulations Advisory By Edward McTiernan Allison B. Rumsey Ethan G. Shenkman The National Environmental Policy Act, 42 USC § 4321 et seq. (NEPA), celebrated its 5oth birthday and, days later, on January 9, 2020, the Council on Environmental Quality (CEQ) proposed comprehensive changes to its implementing regulations. Some of these changes should be welcome updates and improvements to the implementation of NEPA, while others arguably narrow the scope of environmental review for many projects and will likely be more controversial. This Advisory provides a review of 10 key proposed changes. The desire to streamline NEPA has, to some extent, been bipartisan. The Obama Administration also tried to simplify and "fast track" the NEPA process, for example, by encouraging simultaneous federal agency approvals rather than seriatim approvals. The Trump Administration's regulatory overhaul has some of these same aims, but goes further. As discussed in August 2017 and February 2018 Advisories and a January 2018 article, the Trump Administration has been particularly focused on expediting NEPA and other permitting processes to facilitate infrastructure development. Indeed, during his January 9 White House press conference, President Trump commented that "most critical infrastructure projects have been tied up and bogged down by an outrageously slow and burdensome federal approval process." If finalized, the President's proposed changes would cover all major federal actions, from approving mining projects on federal lands or waters to granting permits or financial assistance for major renewable energy and transportation projects. CEQ is proposing revisions to almost every section of the regulations, including each of the key definitions that determine when NEPA applies and the scope of review. The proposed changes are intended to "facilitate more efficient, effective, and timely NEPA review" by simplifying its requirements and codifying case law, CEQ guidance and current agency practice. Here's what you need to know: TOP TEN LIST OF CHANGES Revise the Definition of Major Federal Action. CEQ proposes to revise the definition of "major federal action," which triggers NEPA's requirements. In a significant change, CEQ proposes to depart from longstanding precedent by giving the terms "major" and "significant" independent meaning. Under this revision, a federal project that is not "major" is not subject to NEPA review, even if the project has "significant" environmental impacts. By contrast, in a move that CEQ claims largely codifies case law, CEQ also proposes to find that "major federal actions" do not include "non -discretionary decisions" or federal projects with minimal Federal funding involvement, or control and responsibility. This provision also clarifies the meaning of "control and responsibility" and its applicability to financial assistance programs. Refine the Range of Reasonable Alternatives. The current regulations provide little direction on determining the reasonableness of alternatives, so the courts have filled in the gaps. Again, here, CEQ's proposed revisions arguably codify relevant case law. CEQ proposes to no longer require agencies to consider alternatives that are outside their jurisdiction or not "technically or economically feasible." CEQ also proposes that, where applicable, the alternatives must meet the goals of the applicant. Restrict the Scope of Effects. Perhaps most far-reaching are CEQ's proposed revamping of the definition of "effects." Currently, the CEQ regulations require agencies to consider three types of effects —direct, indirect and cumulative. CEQ is proposing to remove the terms "direct" and "indirect," though the concepts arguably remain. In addition, CEQ is proposing a significant change by no longer requiring consideration of cumulative effects. Accordingly, some have speculated that this will mean the end of climate change and greenhouse gas (GHG) analysis in NEPA. However, beyond the deletion of cumulative effects, CEQ claims that the new definition codifies the Supreme Court's holdings in Department of Transportation v. Public Citizen and Metropolitan Edison Co. v. People Against Nuclear Energy. It also arguably leaves intact the holding in Sierra Club v. FERC, in which the DC Circuit held that NEPA, in some circumstances, requires an agency to review downstream GHGs as "indirect" effects. Under the newly proposed definition: • Effects include those that are "reasonably foreseeable," have a "reasonably close causal relationship to the proposed action or alternatives." • Effects include those that "occur at the same time and place" (i.e., "direct effects," as currently defined) and "are later in time or farther removed in distance" (i.e., "indirect effects," as currently defined). • Effects do not include those that the agency has no authority to prevent. These changes to the definition of effects may significantly narrow the scope of NEPA reviews, if promulgated. Encourage Joint EISs and Environmental Assessments (EAs). Multiple administrations have pushed for more coordinated federal analyses to shorten the NEPA process, in order to "fast track" certain projects. CEQ proposes to adopt and build on the "One Federal Decision" framework by requiring agencies to prepare joint EISs/Records of Decision (RODs) and EAs/Findings of No Significant Impact (FONSIs). To date, the "One Federal Decision" framework has focused on EISs/RODs, so applying this framework to EAs/FONSIs will be new territory. Establish Presumptive Time Limits for EAs and EISs. CEQ proposes that EAs and EISs should be completed in one year and two years, respectively, unless the time limit is modified by a senior agency official. The senior agency official may consider a number of factors when extending the time limits, including, for example, the potential for environmental harm, the degree of public need for the proposed action, and the availability of relevant information. Though the time limits are ambitious, the proposed changes also include a number of provisions that will assist agencies in meeting them, including: • Giving agencies the flexibility to initiate the NEPA process only once they have sufficient information about the proposal; • Allowing agencies to begin scoping before issuance of the Notice of Intent (NOI), which starts of the two-year clock for EISs; • Requiring adherence to schedules developed by lead agencies; and • Allowing an agency to publish a notice when it pauses an EIS or withdraws an NOI. Though not specified in the proposed regulations, this may allow agencies to suspend (at least temporarily) the presumptive time limits. Again, many observers would agree that the NEPA process takes too long. While the proposed time limits are aggressive, it is still the case that an agency must conduct a careful and thorough analysis. If an agency cuts corners in order to complete such an analysis in two years, it risks having a court send it back to the drawing board, exacerbating delay. Expand the Use of Categorical Exclusions. The Government Accountability Office estimated in an April2oi4 Report that 95% of NEPA reviews rely on a Categorial Exclusion (CE), which is a category of actions that an agency determines normally does not have a significant effect on the human environment. CEQ proposes a number of changes that could significantly expand that practice. CEQ proposes to allow mitigation when applying a CE to a proposed action, such that even where "extraordinary circumstances" are present (e.g., effects to federally -listed threatened and endangered species), agencies would be allowed to consider "mitigating circumstances" to bring the action under a CE. CEQ also proposes to allow agencies to adopt other agencies' CE determinations and apply a CE category from another agency's NEPA procedures. Increase Flexibility for Applicants. Currently, both agencies and applicants are restricted from taking actions that will have an adverse environmental impact or limit the choice of reasonable alternatives. CEQ proposes to exempt applicants from this restriction and allow them, for example, to acquire interests in land while the NEPA process is underway. Though this change would allow applicants to more quickly implement projects following agency approvals, it would also create opportunities for risk and conflict —as demonstrated in recent natural gas pipeline disputes where applicants have attempted to exercise eminent domain under Section 7 of the Natural Gas Act before states have issued permits (e.g., Constitution Pipeline and PennEast Pipeline). Narrow Commenting. CEQ proposes to find that comments that are not specific and timely will be deemed "unexhausted and forfeited." CEQ also proposes revisions intended to help commenters quickly review NEPA documents (e.g., requiring summaries of alternatives and analyses). However, the pressure to achieve the presumptive time limits will likely drive agencies to shorten public comment periods. Establish Conclusive Regulatory Presumptions. CEQ proposes a number of changes intended to address the delays resulting from frequent litigation. Of note is the proposal to establish a conclusive presumption that the agency has considered information submitted by the public upon certification by the lead agency decisionmaker. Require Revision of Agency NEPA Procedures. CEQ proposes to make the CEQ Regulations a ceiling rather than a floor as they relate to agency NEPA procedures. Agencies currently have the flexibility to add procedures to the process established in the CEQ NEPA regulations by, for example, requiring enhanced public involvement. CEQ proposes to restrict agencies from imposing "additional procedures or requirements beyond those set forth in the CEQ regulations" unless they are otherwise required by law or facilitate efficiency. These changes will have to be made within a year of when CEQ finalizes its regulations. INVITATIONS FOR COMMENTS In addition to the proposed changes, CEQ invites comments on a number of controversial issues including, but not limited to, whether to: • address the "small handle problem" by establishing per se categories of primarily private or non-federal actions that do not qualify as major federal actions; • establish government -wide categorical exclusion categories; • establish a presumptive maximum number of alternatives; and • codify some or all of CEQ's proposed GHG guidance in the regulation. NEXT STEPS CEQ announced that it will be will be accepting comments for 6o days —until March io, 2020. Upon close of the comment period, CEQ must review, consider, and respond to the comments. CEQ may then finalize the rule. However, given the significant number of comments on the June 2018 advance notice of proposed rulemaking (more than 12,5oo) and the likelihood that CEQ will receive even more comments on the proposed regulations, it may be difficult to achieve this goal before the upcoming election. If a new administration is elected in November, controversial provisions of the proposed rules will likely be reversed, either by withdrawing the proposal if it isn't finalized or by initiating another rulemaking. Once the rule is finalized, it is highly likely that environmental groups and other interested parties will attempt to challenge the rule in the courts. There are a number of questions about the viability of these claims, including but not limited to: • Standing. Will any parties have standing to challenge the regulations, or will litigants have to await application of the regulations —either to a specific project or to the finalization of an individual agency's procedures. • Grounds. Given NEPA's broad and open-ended statutory language, arguments that the CEQ has exceeded the scope of its authority under NEPA may be difficult. On the other hand, challengers will argue that many of these changes are incompatible with judicial precedents construing NEPA. Challengers will likely also focus on the relevant factual record to argue that the agency was arbitrary and capricious in its revision of the rule. If you have questions or concerns about these and other proposed changes to the CEQ regulations, please contact a member of Arnold & Porter's experienced Infrastructure, Environmental Review and Permitting team. Emily Orler contributed to this Advisory. Ms. Orler is a graduate of Georgetown University Law Center and is employed at Arnold & Porter's Washington, DC office. She is not admitted to the practice of law in Washington, DC. © Arnold & Porter Kaye Scholer LLP 2020 All Rights Reserved. This Advisory is intended to be a general summary APA NEWS RELEASE: JANUARY 9, 2020 Proposed NEPA Changes Costly, Threaten Community Safety CHICAGO (January 9, 2020) In response to the proposed overhaul of the NEPA regulations, the American Planning Association (APA) and Association of State Floodplain Managers (ASFPM) urge the Trump administration not to abandon review of development and infrastructure projects to protect the public from fiscal, environmental and health consequences of climate change and natural disasters. APA President Kurt Christiansen, FAICP, and ASFPM Executive Director Chad Berginnis, CFM, cautioned that "ignoring the future impact of climate change as part of the nation's core environmental review law will only increase costs of development and future disaster recovery on taxpayers and communities, while making us all more vulnerable to its already apparent effects." Read the Full Statement (attached) Members of both APA and ASFPM help residents and officials make decisions about resiliency and long-term prosperity of their communities. Last month, APA published Planning for Infrastructure Resilience, a report that provides guidance on helping communities consider new climate and flood realities. The report includes data and tools to help understand the risks of future flooding, conduct vulnerability assessments, and integrate the information into plans and policies. Additionally, the report examines how capital improvement plans, local regulations, and funding sources can help ensure that public infrastructure is resilient to flood and climate impacts for decades to come. The report was co-authored by APA, ASFPM, and Michael Lauer Planning, LLC. APA and ASFM will be providing comments to the proposed regulation changes during the public comment period on behalf of their members. The American Planning Association is an independent, not -for -profit educational organization that provides vital leadership in creating communities of lasting value. APA and its professional institute, the American Institute of Certified Planners, are dedicated to advancing the profession of planning, offering better choices for where and how people work and live. The 45,000 APA members work in concert with community residents, civic leaders and business interests to create communities that enrich people's lives. Through its philanthropic work, APA's Foundation helps to reduce economic and social barriers to good planning. APA has offices in Washington, D.C., and Chicago. Learn more atwww.planning.org. The Association of State Floodplain Managers is the world's leading voice for sound floodplain management, science, and policy, with 37 U.S. chapters, and more than 19,000 members worldwide. ASFPM is an organization of professionals involved in floodplain management, flood hazard mitigation, the National Flood Insurance Program, and flood preparedness, warning and recovery. Learn more at floods. org. CONTACT Roberta Rewers, APA, 312-786-6395; rrewers@planning.org Eric Murtaugh, ASFPM, 608-828-6328; eric@floods.org APA and ASFPM Statement on NEPA Regulation Changes Joint Statement of the American Planning Association and the Association of State Floodplain Managers on Proposed Changes to Federal NEPA Regulations The Trump administration's proposed overhaul of regulations for federal environmental reviews poses a significant and needless threat to efforts to make the nation's communities safer and more resilient. By eliminating the consideration of the cumulative impact of projects on climate change, these rules would make projects more expensive to taxpayers while making people and property more vulnerable. Americans need not choose between effective infrastructure development and resiliency. That is a false choice. Far from expediting projects, the proposed approach would only add cost, uncertainty, and risk. We share the goal of making project reviews timelier and more efficient. This can be achieved while maintaining the ability to make thoughtful, informed decisions that don't saddle taxpayers with repeated disaster and rebuilding costs and escalating climate impacts. As organizations representing more than 60,000 professionals responsible for helping residents and officials make smart decisions about the resiliency and long-term prosperity of their communities, APA and ASFPM urge the Trump administration to take a different course one that supports state and local innovation in evaluating the impact of development projects and adequately protects the public from the fiscal, environmental, and health consequences of climate change and natural disasters. Our organizations are committed to helping states and communities make good infrastructure and development decisions that benefit everyone. In support of this goal, we have just released a research report Planning for Infrastructure Resilience — that provides guidance on innovative local approaches that balance public protection with efficiency. The initiatives cited in the report demand a good federal partnership that does not create greater risk and raise costs through faulty regulatory structures that fail to account for climate impacts. Ignoring the future impact of climate change as part of the nation's core environmental review law will only increase costs of development and future disaster recovery on taxpayers and communities, while making us all more vulnerable to its already apparent effects. Kurt Christiansen, FAICP President American Planning Association Chad Berginnis, CFM Executive Director Association of State Floodplain Managers