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On July 15, 2020, the White House Council on Environmental Quality (CEQ) promulgated a final rule amending the implementing regulations (40 CFR § 1500, et seq.) of the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (NEPA). The final rule largely tracks proposed amendments, which the CEQ issued on January 10, 2020. The amendments aim to align NEPA’s implementing regulations with underutilized principles embedded in statutory provisions, agency guidance, and court decisions to streamline the environmental review process. These regulatory changes represent the culmination of Trump administration efforts to modernize NEPA dating back to August 2017, when the White House issued Executive Order 13087 to mitigate the delays that environmental reviews present to infrastructure development, including the licensing and development of nuclear facilities. The final rule will become effective on September 14, 2020.
Although the final rule does not directly address the environmental review procedures of federal agencies that regulate the commercial nuclear industry, these agencies—including the Nuclear Regulatory Commission (NRC or the Commission), Federal Energy Regulatory Commission (FERC), and Department of Energy (DOE)—have based their own procedures on CEQ’s regulations. Indeed, since the promulgation of the final rule, NRC has reiterated its likely continued adherence to CEQ regulations as a matter of policy, despite the fact that the Commission has historically insisted that as an independent agency it is not obligated to do so. Therefore, the recent amendments will likely precipitate changes to environmental reviews of federal actions relevant to the nuclear industry.
Core Elements of the Amendments
The main features of the amendments include the following:
Potential Effects on NRC’s NEPA Procedures
The principles reflected in the CEQ’s amendments reflect approaches that the nuclear energy industry has advocated to the NRC in recent years to streamline the Commission’s environmental review process, which is notoriously slow and complicated. Moreover, the basic premise of expediting environmental review is consistent with the Nuclear Energy Innovation and Modernization Act (NEIMA), which was signed into law in January 2019. Among other things, this federal statute requires NRC to establish an accelerated milestone schedule for license renewal applications, and NRC has instituted and, thus far, adhered to the schedule.
That being said, the likely impact of the amendments on the NRC’s current environmental review process is difficult to ascertain. However, it seems reasonable that the CEQ amendments could precipitate the following changes to current NRC practice:
On the other hand, certain aspects of CEQ amendments are unlikely to result in meaningful changes to current NRC practice. For example, the NRC currently incorporates, but does not enforce, CEQ’s existing page limits in its own NEPA regulations. (See Appendix A to 10 CFR Part 51.) Even if the Commission were to strictly enforce the new page limits set forth in the CEQ amendments, these easily could be circumvented by moving text from the main body of the report to appendices. Similar considerations apply to the presumptive time limits established under the recent amendments, as these may be extended by senior agency officials and, given this leeway, both private parties nor NRC Staff would likely sacrifice timeliness if it meant issuing a report less likely to be challenged.
Furthermore, CEQ amendments do not directly address the adjudicatory hearings permitted under 10 CFR §§ 2.309(f)(vii)(2), 51.94, and 51.104(a)(1), on contested elements of the NRC Staff’s review. These hearings are not required under NEPA and constitute a unique feature of the Commission’s environmental review procedures that are often a source of delay in the completion of the NRC licensing process as they may not commence before a final EIS is issued. Thus, without wholesale revisions to the relevant authorizing regulations, mere adoption of the CEQ amendments would not remove this cause of delay.
The Specter of Litigation Challenges and the Congressional Review Act
Although the nuclear industry will largely welcome the NEPA amendments, environmental groups have roundly criticized CEQ’s rulemaking and characterized it as a gutting of the statute. Some have vowed to challenge the rulemaking, both on its face and in its application to individual projects.
In the latter connection, some of the approaches advocated by the amendments may incite claims, which, if brought, may actually result in greater delays than under the current NEPA process. For example, although project applicants may complete environmental reports more quickly than governmental agencies, such as the NRC, legal challenges regarding the adequacy of agency oversight may slow down the process to a greater degree than if NRC Staff were to have prepared the reports in the first place.
Perhaps an even greater threat to the implementation of the amendments involves the Congressional Review Act. The Trump administration made novel use of this statute to overturn a number of Obama-era rulemakings. A Democratic victory in the 2020 presidential elections could result in a new administration seeking to return the favor with rulemakings promulgated during the Trump presidency.
Nevertheless, were the CEQ amendments to avoid or survive a mandatory congressional review, their impact on NRC procedures will only become apparent once the Commission’s regulations at 10 CFR Part 51 are amended. This will entail further rulemakings and public outreach by the Commission. Interested parties should act now if they wish to influence this process.
Pillsbury has leading nuclear regulatory and environmental practices with over 60 years of experience representing clients in connection with rulemakings and other important regulatory developments. Pillsbury practitioners include a variety of nuclear specialists including a former NRC commissioner and NEPA specialists.