CEQ Finalizes the First Phase of its Revisions to NEPA Regulations

On April 20, 2022, the Council on Environmental Quality restored regulations under the National Environmental Policy Act (NEPA) that the Trump administration had removed in a 2020 rule. The April 2022 rule—which is “Phase 1” of the agency’s plan to restore NEPA to its pre-2020 rigor—makes several major changes to NEPA regulations. First, the rule requires agencies to consider the “direct,” “indirect,” and “cumulative” impacts of proposed agency decisions. Review of cumulative impacts, which the Trump administration’s 2020 rule removed from the NEPA process, is frequently necessary to understand a project’s contribution to climate change. Cumulative impacts are also relevant to environmental justice analyses. In addition to restoring review of cumulative impacts, the rule also restores federal agencies’ authority to develop and analyze project alternatives to minimize the environmental and public health costs of a proposed project. Relatedly, the rule clarifies that agencies have discretion to assess a variety of factors related to a project’s “purpose and need,” removing a requirement that limited an agency to considering the applicant’s stated goals and the agency’s statutory authority. Finally, the rule allows federal agencies to go beyond NEPA’s minimum requirements in their environmental review.