Guidance and priorities related to the National Environmental Policy Act (NEPA) have experienced several changes since the beginning of the year that will likely have impacts on environmental projects for years to come. This guidance comes from a combination of federal priorities and bureau guidance, and can change over time, especially during changes in leadership. In this article, we offer a brief synopsis of 2021 NEPA guidance, explain when NEPA requirements apply, and summarize how the overarching themes contained within the most recent NEPA updates may affect certain environmental projects.
What’s new with NEPA?
Since January 1, 2021, four key NEPA updates have occurred through a combination of executive orders (EO) and secretarial orders (SO):
EO 13990: Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis
EO 13990 was signed on the first day of the current federal administration and serves as the cornerstone of current federal environmental policy. EO 13990 intends to initiate efforts surrounding “confronting the climate crisis,” establishing the following priorities:
- Listening to science
- Improving public health
- Protecting the environment
- Ensuring access to clean air and water
- Limiting exposure to dangerous chemicals
- Reducing greenhouse gas emissions
- Bolstering resiliency to climate change
- Prioritizing environmental justice
Although EO 13990 does not directly reference the NEPA process, other orders that reference NEPA cite this order as the primary guiding document. EO 13990 requires federal agencies to review existing regulations, orders, guidance, and policy to revise, rescind, or suspend any actions that do not follow the priorities of this directive.
SO 3399: Department-Wide Approach to the Climate Crisis and Restoring Transparency and Integrity to the Decision-Making Process
SO 3399 is concurrent with EO 13990 and specifically refers to the NEPA process. SO 3399 offers clear directives that reinforce the need for consideration of climate change and greenhouse gases as well as engagement with tribes and environmental justice organizations. SO 3399 “requires all bureaus/offices to utilize science and enhance the opportunities for tribal and environmental community engagement in NEPA.”
EO 13715: Consultation and Coordination with Indian Tribal Governments
EO 13715 is intended to ensure tribal nations remain sovereign and requests they be consulted throughout any federal actions. EO 13715 requests that each federal agency have an “accountable process to ensure meaningful and timely input by tribal officials in the development of regulatory policies,” with an emphasis on consulting with tribal officials early in the process of developing proposed regulations.
Like EO 13990, NEPA is not directly acknowledged within EO 13715. However, EO 13715 mandates federal agencies to review existing regulations, orders, guidance, and policy to confirm alignment with the current directive.
SO 3398: Revocation of Secretary’s Orders Inconsistent with Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis
SO 3398 revokes recent changes to agency guidance from 12 SOs that do not align with EO 13990. Specifically, SO 3398 revokes the streamlining of Section 106 from the National Historic Preservation Act (NHPA).
When do NEPA requirements apply to a project?
NEPA does not apply to every natural resource or environmental project. NEPA is only required if a “federal action” is involved with potential outcomes that may affect the quality of the human environment. Federal action is a term for anything the federal government has to approve, but the federal government must also have “discretion to choose among one or more alternative means of accomplishing a particular goal” for NEPA to apply. In practice, this generally means that any activity that involves federal lands, minerals, or waters and requires some form of approval from the federal government is potentially subject to NEPA requirements.
In summary: Overarching themes and project impacts
Evaluating the four key NEPA updates in 2021, it appears environmental justice and climate change may be focus areas of the current NEPA process. This alignment is consistent with EPA’s other programs and actions where environmental justice and climate change were brought into forefront recently.
When supporting the NEPA process, considering how proposed action(s) may affect or relate to environmental justice and/or climate change may help streamline project efforts. Additionally, federal agencies may encourage increased phasing of projects (review cycles) to better integrate internal and external partners.
Interested in more?
Trihydro closely follows NEPA updates to help organizations understand how changes impact regulatory requirements and operations. Contact us to discuss your project-specific questions.