Shiny, Happy NEPA: How the Administration Plans to Make NEPA More User-Friendly

Jan 13, 2020

Reading Time : 3 min

In particular, CEQ is proposing to consolidate the definition of “effects,” eliminating its references to indirect and cumulative effects with the goal of restraining courts from reading those terms so expansively as to include speculative effects, resulting in time-consuming litigation and delay. CEQ also proposes to change how effects should be interpreted, to be more in line with the Supreme Court’s opinion in Public Citizen, 541 U.S. 752, such that the effects must (1) have a reasonably close causal relationship to the proposed action or alternatives; (2) not be remote in time or geography; and (3) not include effects that the agency has no authority to prevent or would happen without the agency action.

One effect, if not the primary aim, of these proposed definitional changes is the exclusion of climate change considerations from NEPA reviews—lead agencies need only assess impacts tied directly to a project and not downstream impacts on climate or greenhouse gas emissions. This would streamline the analysis of certain large projects such as the Keystone XL pipeline, the construction of which has relatively little direct, immediate climate impact regardless of the overall impact facilitated by its operation.

Another key change would revise the definition of “major Federal action,” a threshold requirement for NEPA application, to projects receiving a certain level of federal funding or requiring federal agency approval. The proposed definition specifically does not include “nondiscretionary decisions made in accordance with the agency’s statutory authority” or “non-Federal projects with minimal Federal funding or minimal Federal involvement where the agency cannot control the outcome of the project.” In particular, the proposed rule notes that an example of a project that could be exempt from NEPA is an infrastructure project where a small percentage of federal funding goes to the design of the project, but the project is otherwise funded with private or local funds. These changes could significantly curtail the number of projects undergoing NEPA review.

Also of note, the proposed rule would narrow the range of alternatives that must be considered by defining the term reasonable alternative as “a reasonable range of alternatives” and those that are “technically and economically feasible and meet the purpose and need of the proposed action.” The proposed rule, while highlighting the role of participating agencies and the public, would restrict legal challenges by providing that “comments not timely raised and information not provided shall be deemed unexhausted and forfeited.”

Announcement of CEQ’s proposed changes sparked immediate reaction by key policy makers in Congress. In the House of Representatives, a bipartisan pair of Members—Reps. Diana DeGette (D-CO) and Frances Rooney (R-FL)—circulated a letter to their House colleagues urging opposition to the administration’s proposal that “ignores the full extent of the climate crisis.” Rep. Debbie Dingell (D-MI)—wife of the late Rep. John Dingell (D-MI), a principal architect of NEPA—vowed legislative action to halt or reverse the proposed changes, possibly through use of the Congressional Review Act (CRA) procedure to block implementation of a final rule. Rep. Raul Grijalva (D-AZ), chair of the House Committee on Natural Resources, which has jurisdiction over NEPA, expressed similar concerns. Key Democratic Senators—including Sen. Tom Carper (D-DE), the ranking member on the Senate Committee on Environment and Public Works (EPW), which has jurisdiction over NEPA—voiced strong opposition to the proposed rule.

On the other hand, Sen. John Barrasso (R-WY), chair of the Senate EPW Committee, applauded the administration’s proposal, stating “[t]he Trump administration is taking common sense steps to make the National Environmental Policy Act work better for the American people.” Sen. Lisa Murkowski (R-AK), chair of the Senate Committee on Energy and Natural Resources, also welcomed the effort to “propose a modernization of federal environmental review and permitting processes under [NEPA].” Similarly, the ranking Republican on the House Natural Resources Committee, Rep. Rob Bishop (R-UT), lauded the administration’s efforts to fix “America’s broken environmental review and permitting process.”

Given the central role and long history of NEPA in environmental reviews of major federal actions, Congress likely will conduct detailed oversight of the rulemaking process. Given the timing of this announcement less than 10 months before presidential and congressional elections, the issue likely will receive significant policy and political attention this year, and into the next administration and Congress in 2021.

EPA is accepting comments on the proposal until March 10, 2020, and has scheduled public hearings in Denver and Washington on February 11 and 25, 2020, respectively. Project proponents should generally welcome the changes as they will limit the number of projects subject to NEPA review and are crafted to streamline and expedite the review process for those projects still needing review. Others, however, may see a significant downside in an attempt to eliminate from federal consideration the climate impact or greenhouse gas emissions of projects. Regardless of one’s position, ignoring climate effects may turn out to be a bridge too far, for what would otherwise be another lauded deregulatory action from the current administration.

Share This Insight

Previous Entries

Speaking Energy

August 15, 2025

On August 8, 2025, the Federal Energy Regulatory Commission (FERC) issued an enforcement order in Skye MS, LLC (Skye) and levied a $45,000 civil penalty on an intrastate pipeline operator in Mississippi, resolving an investigation into the operator’s violations of section 311 (Section 311) of the Natural Gas Policy Act (NGPA). FERC faulted the operator for providing a Section 311 transportation service without timely filing a Statement of Operating Conditions (SOC) and obtaining FERC’s approval for the transportation rates. Section 311 permits intrastate pipelines to transport interstate gas “on behalf of” interstate pipelines without becoming subject to FERC’s more extensive Natural Gas Act (NGA) jurisdiction, but requires the intrastate pipeline to have an SOC stating the rates and terms and conditions of service on file with FERC within 30 days of providing the interstate service. Under the NGPA, Section 311 rates must be “fair and equitable” and approved by FERC. In Skye, FERC stated that the operator began providing Section 311 service on certain pipeline segments in Mississippi in May 2023, following their acquisition from another Section 311 operator, but did not file an SOC with FERC until April 2025. The order ties the penalty to the approximately two-year delay between commencement of the Section 311 service and the SOC filing date. The pipeline operator was also ordered to provide an annual compliance report and to abide by additional verification requirements related to the filing of its FERC Form No. 549D, the Quarterly Transportation & Storage Report for Intrastate Natural Gas and Hinshaw Pipelines.

...

Read More

Speaking Energy

August 6, 2025

In Sierra Club v. FERC, No. 24-1199 (D.C. Cir. Aug. 1, 2025), the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) upheld the Federal Energy Regulatory Commission’s (FERC) approval of a 1,000-foot natural gas pipeline segment crossing the United States-Mexico border (the Border Pipeline) under section 3 of the Natural Gas Act (NGA), rejecting environmental groups’ challenges that FERC improperly limited its analysis under both the NGA and the National Environmental Policy Act (NEPA), as related to a 155-mile intrastate “Connector Pipeline” constructed upstream of the Border Pipeline in Texas.

...

Read More

Speaking Energy

July 17, 2025

On July 15, 2025, the Federal Energy Regulatory Commission (FERC or Commission) issued an order1 proposing to eliminate the soft price cap of $1,000 per megawatt-hour (MWh) for bilateral spot sales in the Western Electricity Coordinating Council (WECC) that was implemented following the California energy crisis. If adopted, the Commission’s proposal would eliminate the requirement that sellers make a filing with FERC cost justifying spot market sales in excess of the soft price cap, which have become increasingly common in recent years as market conditions have continued to tighten throughout the West. Eliminating the WECC soft price cap would provide sellers that make sales during periods when prices exceed the cap greater certainty that their sales will not be second guessed after the fact.

...

Read More

Speaking Energy

June 25, 2025

On June 4–5, 2025, the Federal Energy Regulatory Commission (FERC or Commission) hosted a commissioner-led technical conference to discuss resource adequacy challenges facing regional transmission organizations and independent system operators (RTO). The conference is a response to the growing concern that multiple RTO regions across the country may not have sufficient supply available in the coming years to meet demand due to resource retirements, the pace of new generation entry and higher load growth arising from the construction of data centers and reindustrialization.

...

Read More

Speaking Energy

June 12, 2025

We are pleased to share the presentation slide deck and a recording of Akin’s recently presented webinar, “Navigating U.S. Policy Shifts in the Critical Minerals Sector.”

...

Read More

Speaking Energy

June 10, 2025

On June 4, 2025, the U.S. Department of Transportation’s (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) announced revisions to its procedures for pipeline safety enforcement actions. The changes, outlined in two new policy memoranda from PHMSA’s Office of the Chief Counsel (PHC), aim to enhance due process protections for pipeline operators by clarifying how civil penalties are calculated and expanding the disclosure of agency records in enforcement proceedings.

...

Read More

Speaking Energy

May 22, 2025

On May 19, 2025, the Department of Energy (DOE) finalized its 2024 LNG Export Study: Energy, Economic and Environmental Assessment of U.S. LNG Exports (the 2024 Study) through the release of a Response to Comments on the 2024 Study. The Response to Comments concludes that the 2024 Study, as augmented through public comments submitted on or before March 20, 2025, supporting a finding that liquefied natural gas (LNG) exports serve the public interest. With the comment process complete, DOE will move forward with final orders on pending applications to export LNG to non-free trade agreement (non-FTA) countries.

...

Read More

Speaking Energy

May 20, 2025

On Thursday, May 15, the Senate Commerce, Science & Transportation Subcommittee on Surface Transportation, Freight, Pipelines and Safety held a hearing titled, “Pipeline Safety Reauthorization: Ensuring the Safe and Efficient Movement of American Energy.” The hearing examined legislative priorities for reauthorizing the Pipeline and Hazardous Materials Safety Administration (PHMSA).

...

Read More

© 2025 Akin Gump Strauss Hauer & Feld LLP. All rights reserved. Attorney advertising. This document is distributed for informational use only; it does not constitute legal advice and should not be used as such. Prior results do not guarantee a similar outcome. Akin is the practicing name of Akin Gump LLP, a New York limited liability partnership authorized and regulated by the Solicitors Regulation Authority under number 267321. A list of the partners is available for inspection at Eighth Floor, Ten Bishops Square, London E1 6EG. For more information about Akin Gump LLP, Akin Gump Strauss Hauer & Feld LLP and other associated entities under which the Akin Gump network operates worldwide, please see our Legal Notices page.