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Proposed NEPA Revisions Seek to Ingrain Environmental Justice into Permitting Decisions

Daniel BLOG By: Daniel L. Robertson

The Council on Environmental Quality recently published the “Bipartisan Permitting Reform Implementation Rule,” the second in a two-phase approach to revising National Environmental Policy Act (NEPA) implementation regulations. An accompanying White House Fact Sheet highlights the proposal’s objectives to accelerate environmental reviews, encourage community engagement, accelerate clean energy advancements, strengthen energy security, and advance environmental justice.

From an environmental justice perspective, the proposed revisions will require agencies, where appropriate, to incorporate mitigation measures that will avoid or reduce a proposed action’s significant adverse health and environmental effects that disproportionately and adversely affect communities with environmental justice concerns. The proposal generally embeds the term “environmental justice” throughout the NEPA regulations, making a facility’s location a determining factor in the degree of review an agency gives a specific proposal, or whether the agency approves the project at all. Agencies must also, “to the fullest extent possible,” encourage and facilitate public engagement in decisions affecting the quality of the human environment, including meaningfully engaging communities with environmental justice concerns.

The revisions require agencies to consider the needs of affected communities when developing outreach and notification strategies. Notably, the proposal replaces the term “public involvement” with “public engagement,” emphasizing that interaction and collaboration is required between agencies and impacted communities, versus simply posting a public notice. That engagement must begin early in the process to seek input on proposals from impacted communities. Agencies are also required to provide sufficient notification to the community, which means making relevant documents accessible for community review. The proposal emphasizes that agencies must respond to public comments, removing a revision under the Trump Administration that an agency “may” respond to public comments. Further, agencies will be required to identify a “Chief Public Engagement Officer” that will be responsible for facilitating the agency’s community engagement. Overall, these processes are intended to make federal agency decisions more accessible and transparent to interested community members.

Besides encouraging early community engagement, the proposed rule also seeks to enhance engagement by removing what it described as “detailed and onerous” requirements that the prior administration imposed on public comments for them to be considered by an agency. These included requirements such as producing supporting information on a position or obtaining an expert to provide certain levels of detail. The proposal also removes a qualifier that the public comment should indicate what specific economic or employment impacts it is addressing. Generally, the expectation is that public comments will increase and more comments will be considered in agency decision-making.

The CEQ is currently holding public meetings on the proposal, with public comments due by September 29, 2023. Interested parties can submit their comments, identified by docket number CEQ–2023–0003, here. Additional information on the public hearings is located here. The first phase received almost 95,000 written comments, and it’s anticipated that this second phase will equally receive significant public attention.

Through this proposal, the Biden Administration is continuing its “whole of government” approach to embracing environmental justice initiatives. While not stated in the revisions, the regulated community should be mindful of these enhanced community engagement and cumulative impact provisions potentially entering future permit application requirements. We will continue to monitor CEQ’s proposed revisions and other environmental justice developments on the Corporate Environmental Lawyer blog.