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White House Phase II NEPA rule reaches another process milestone

On January 23, 2024, the White House Council on Environmental Quality (CEQ) sent its Phase 2 National Environmental Policy Act Implementing Regulations Revisions to the Office of Management and Budget (OMB) for review. While the public comment period on the proposed Phase 2 rule ended on September 29, 2023, environmental and industry groups will now likely lobby OMB in an attempt to bend the final product towards their interests. At stake are the rules driving government’s approach to addressing clean air and water, greenhouse gas emissions, climate change and environmental justice. The adoption of this rule, expected by the end of 2024, will generate immediate and lasting impacts on industry, developers, and nearly every U.S. citizen.

To some, the proposed regulation is a clear and necessary departure from the Trump administration's 2020 NEPA rule. Gone are the prior rule’s restrictions on public comments and legal reviews of projects. Also, CEQ’s proposal incorporates permitting reforms related to review deadlines and other environmental limitations. To others, it’s but one more example of the current administration exceeding its authority under NEPA.

For now, it appears the only element of the final rule that’s 100% predictable is the enduring controversy that adoption will protract.  Indeed, litigation will most certainly follow.

When asked about the implications of the Phase II NEPA rule as proposed, my D&A colleague and former U.S. Department of Justice environmental attorney Larry Liebesman recently told me the rule could “incentivize citizen and environmental groups to challenge projects where those effects were not properly considered” and “lessen the scope of  review for environmentally beneficial projects  ( e.g. clean energy projects) as compared to review of the more traditional energy projects such as oil and gas.”

Another of my D&A colleagues and former Chief of the U.S. Army Corps of Engineers Regulatory Program, Dr. Mark Sudol, sees challenges for the federal agency charged with implementing the expanded NEPA reviews. They include delays in processing Corps permits. Dr. Sudol believes, “the increased scrutiny on environmental justice will significantly increase processing times as there are no accepted methods for analyzing these potential impacts.”

In the often-chaotic caldron of governance that’s typical of Washington, DC, it’s easy to become distracted by headline grabbing exploits exhibited by both the Administration and Congress. While political leaders and bureaucrats wrestle with monumental issues such as national security, immigration, and elections of consequence, the seemingly routine business of governance plods along like a pack mule in a wagon train. The CEQ proposal to finalize a capstone rule on environmental permitting, with potentially massive implications for the U.S. economy and environmental stewardship, is a case in point.

Maj. Gen. (Ret) Rick Stevens

Senior Vice President

A former Deputy Commanding General of the U.S. Army Corps of Engineers, Rick joined Dawson & Associates in 2018


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