proposing that new categorical exclusion B4.14 be limited to electrochemical-battery and flywheel energy storage systems because it does not have sufficient information to conclude that compressed air energy storage, thermal energy storage (e.g., molten salt storage), or other storage technologies normally do not present the potential for significant environmental impacts. In the proposed rule, DOE asks for comments that provide analytic support for whether these other energy storage technologies meet the requirements for a categorical exclusion and suggests that, if the DOE identifies sufficient support, it may revise the categorical exclusion in the final rule to include additional energy storage technologies.Next StepsDOE is accepting comments on the proposed rule through January 2, 2024.Endnotes[1] 88 Fed. Reg. 78681 (Nov. 16, 2023).[2] See e.g., Infrastructure Investment and Jobs Act, H.R. 3684, Section 40001 et seq.; Inflation Reduction Act, H.R. 5376, Section 13001 et. seq.[3] 42 U.S.C. 4332(2)(C).[4] See Council on Environmental Quality, EIS Timeline Data Excel Workbook, (June 12, 2020)[5] 40 C.F.R. § 1501.4(a) (“For efficiency, agencies…identify in their agency NEPA … categories of actions that normally do not have a significant effect on the human environment, and therefore do not require preparation of an environmental assessment or environmental impact statement.”).[6] 10 C.F.R. Ch. X, Subchapter D.[7] DOE, National Environmental Policy Act Implementing Procedures, 76 Fed. Reg. 63764 (October 13, 2011).[8] 88 Fed. Reg. 72525 (October 20, 2023) (“This notice describes the categories of proposed actions for which DHS intends to use DOE's electric vehicle charging stations CE and details the consultation between the agencies.”); 88 Fed. Reg. 64972 (September 20, 2023) (“The U.S. Department of Transportation (DOT) is adopting the Department of Energy's (DOE's) Electric Vehicle Charging Stations Categorical Exclusion (CE) under the National Environmental Policy Act to use in DO

President Joe Biden signed into law the Fiscal Responsibility Act of 2023 (FRA), colloquially referred to as the Debt Ceiling Bill, on June 3, 2023.[1] The legislation completes a bipartisan agreement to suspend the public debt limit until 2025 and includes the most substantive amendments to the National Environmental Policy Act (NEPA) since the enactment of the statute in 1970. The FRA effectively codifies many of the regulations that the Council on Environmental Quality (CEQ) promulgated in 2020 during the Trump administration. This Update provides a brief summary of the key NEPA amendments in the FRA and offers some context within which to assess the likely impact of the changes.Major Amendments to NEPAThe FRA amends NEPA in the following key ways:NEPA’s mandate. The law amends the basic requirements for an environmental impact statement (EIS) in Section 102(2)(C) (42 U.S.C. § 4332(2)(C)). It provides that an EIS must consider the “reasonably foreseeable environmental effects of the proposed agency action” and analysis of a “reasonable range” of alternatives that are “technically and economically feasible” and meet the purpose and need of the proposed action. These amendments are consistent with CEQ’s 2022 amendment to the definition of “effects,” which the council revised to include direct, indirect, and cumulative effects, and also track the U.S. Supreme Court’s focus on NEPA’s inherent “rule of reason.” See DOT v. Public Citizen, 541 U.S. 741, 767 (2004). As part of the alternatives analysis, the agency is also now required to consider “any negative environmental impacts of not implementing the proposed agency action in the case of a no action alternative,” which effectively emphasizes the benefits of the agency action by focusing on the negative effects of not implementing the proposed action.Deadlines. The time limits provided in the 2020 CEQ regulations are most

rgely Codify Existing Interpretation and Practice On May 31, 2023, the House of Representatives advanced the Fiscal Responsibility Act of 2023 (“FRA”), which would suspend the federal debt limit until Jan. 1, 2025. The FRA passed the Senate last night and will be signed into law by the president. Though largely focused on federal spending, the legislation also amends the National Environmental Policy Act (NEPA) of 1970. The amendments are notable because the statute has rarely been revised in its 53-year history. Because the amendments largely track existing regulations and federal case law interpreting NEPA, the modifications will not significantly change how NEPA is applied in practice. However, by codifying the current regulations, Congress entrenches the provisions, providing project proponents with greater regulatory certainty.Parameters for the Elements of a NEPA Review The FRA provides more specificity regarding the elements of NEPA reviews, including the following revisions to 42 U.S.C. § 4332 (emphasis added):Analysis limited to reasonably foreseeable environmental impacts: Clauses (C)(i) and (ii) limit a NEPA analysis to the “reasonably foreseeable environmental impacts of the proposed agency action,” rather than the universe of environmental impacts.The revision tracks the current definitions of “effects or impacts” and “reasonably foreseeable” in the CEQ regulations. 40 C.F.R. § 1508.1(g), (aa).Alternatives must be reasonable: Rather than simply stating that a NEPA analysis must consider “alternatives to the proposed action,” new clause (C)(iii) requires agencies to consider “a reasonable range of alternatives to the proposed agency action.” The clause further specifies the alternatives considered must be “technically and economically feasible” and “meet the purpose and need of the proposal.” This change aligns with the 2020 revision to the definition of “reasonable alternatives” in the Council on Environmental Quality (CEQ) regulations implementing NEPA, 40 C.F.R. § 15

itled National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions and Climate Change (CEQ-2022-0005). The guidance represents the latest action in a series of presidential policies regarding the National Environmental Policy Act’s (NEPA; P.L. 91-190) environmental regulations for agencies targeted towards reducing greenhouse gas (GHG) emissions and mitigating the impacts of climate change.Although CEQ is seeking public comment on the interim guidance through March 10, 2023, the guidance is effective immediately. This client alert covers the recent history of NEPA, outlines key provisions of the new guidance and discusses the potential impact of the interim guidance.Since NEPA became law in 1970, various presidential administrations and courts have grappled with how to implement the mandate that leads agencies to consider environmental impacts before moving forward with “major federal actions” that “significantly affect the quality of the human environment” (42 U.S.C. Sec. 4332(2)(C)). The shifts in view regarding the scope of environmental review required under NEPA – and, in particular, the extent to which agencies must consider indirect impacts on the environment, including the effect of climate change and greenhouse gas emissions – have been notable across the Obama-Biden administration, the Trump-Pence administration and now the Biden-Harris administration.1In 2016, during the Obama-Biden administration, CEQ directed agencies to consider the impact agency projects had on GHG emissions and climate change. When President Trump assumed office, he ordered that the division roll back the 2016 provisions while further streamlining NEPA reviews to facilitate permitting for infrastructure projects. When President Biden took office, he reversed course and halted all Trump-Pence era regulations, signaling a move towards extensive consideration of GHG emissions and climate change in NEPA reporting. In April of 2022, under direction from President Biden, CEQ published Na

Once the COP has been approved and other relevant agencies have completed their reviews and authorizations, construction can being. (For more information on BOEM’s leasing process, see .).National Environmental Policy ActGiven the number of “major federal actions” necessary for the development of offshore wind, environmental review pursuant to the National Environmental Policy Act (NEPA) is applicable to offshore wind projects sited in the OCS. (See 42 U.S.C. § 4332.). Typically, for such projects BOEM acts as the lead NEPA agency and coordinates with other federal, state, and local agencies throughout the environmental review process.

NEPA requires federal agencies to examine the environmental effects of their proposed actions and alternatives and any adverse environmental effects that cannot be avoided if the proposed action is implemented. 42 U.S.C. 4332(2)(C). The 2020 Rule (40 CFR 1508.1(g)) changed the definition of “effects” to those “that are reasonably foreseeable and have a reasonably close causal relationship,” and limited a causal relationship to a “but for” relationship between development and effect.

A social cost of CH4 and NOx was also developed and used by federal agencies under the Obama administration. On March 28, 2017, IWG was disbanded by President Donald Trump via Executive Order 13783, Promoting Energy Independence and Economic Growth (March 28, 2017), along with revocation of the documents created by IWG. Interim values were then developed by the U.S. Environmental Protection Agency (EPA) that accounted for only domestic impacts and used a lower discount rate, resulting in a significantly lower SCC.3 White House Briefing Room, A Return to Science: Evidence-Based Estimates of the Benefits of Reducing Climate Pollution (Feb. 26, 2021), available here.4 42 U.S.C. § 4332(2)(C).5 The Department of Interior’s Mineral Management Service NEPA Manual, effective May 27, 2004, effectively deems “[a]pproval of offshore lease sales” a major federal action requiring an EIS.6 30 C.F.R. § 585.104.

The challenges in the Petition raised by the Petitioner include:Failure to demonstrate compliance with the requirements of the National Historic Preservation Act, 16 U.S.C. §§ 470, et seq. and implementing regulations;Failure to demonstrate compliance with the cumulative effects analysis required by 40 C.F.R. § 144.33(c)(3), the “functional equivalence” doctrine, and NEPA’s “systematic, interdisciplinary approach” to federal decisionmaking. 42 U.S.C. § 4332((A)).Failure to demonstrate compliance with the Safe Drinking Water Act and implementing regulations, including 40 CFR § 144.12, 40 CFR § 146.33(a), and 40 CFR § 146.6(a)(ii), regarding demonstration of ability to contain the mining fluid within the exempted aquifer and protect underground sources of drinking water.Failure to abide by the procedural rulemaking requirements of the Administrative Procedure Act, 5 U.S.C. §§ 701, et seq.A copy of the Petition can be downloaded here.

This basic process is retained by the new regulations, but with some significant changes we examine below.NEPA requires that federal agencies prepare a detailed statement for “major Federal actions significantly affecting the quality of the human environment.” 42 USC §4332(2)(C). As we described last week, under the old regulation, any federal action having significant environmental impacts was considered a major federal action.

CEQ is expected to issue guidance on how agencies must account for any reasonably foreseeable greenhouse gas emissions, which should clarify some uncertainty, but many questions remain.Analysis of RegulationsFor any “major federal action significantly impacting the human environment,” NEPA requires agencies to consider, among other things, “the environmental impact of the proposed action,” and “any adverse environmental effects which cannot be avoided should the proposal be implemented.” 42 U.S.C. § 4332. Because NEPA leaves these terms undefined, CEQ has long filled the gap through regulations, previously categorizing effects as either “direct,” “indirect,” or “cumulative,” the latter of which refers to “the combination of individually minor effects of multiple actions over time.”