DOE RELEASES FINAL INTERIM RULE CHANGE TO NEPA PROCEDURES ARE NOW “PROCEDURAL GUIDANCE”

The Department of Energy (DOE) has released a final interim rule that would change its implementation of the National Environmental Policy Act (NEPA) to terminate its NEPA regulations, which could result in substantial changes in how NEPA proceeds for all projects at DOE sites. The new policies are based on the recent Executive Order on NEPA and the recent Supreme Court ruling in Seven County Infrastructure Coalition v Eagle County, Colorado. 

Justice Brett Kavanaugh delivered the opinion of the court, writing: “Citizens may not enlist the federal courts, 'under the guise of judicial review' of agency compliance with NEPA, to delay or block agency projects based on the environmental effects of other projects separate from the project at hand”.  

DOE new interim regulations summary adds: “..DOE will henceforth maintain the remainder of its procedures in a procedural guidance document separate from the Code of Federal Regulations (DOE NEPA implementing procedures). Thus, DOE is revising 10 CFR part 1021 to contain only administrative and routine actions excepted from NEPA review in appendix A, its existing categorical exclusions in appendix B, related requirements, and a provision for emergency circumstances. DOE is revising appendix A in 10 CFR part 1021 to align with DOE’s new NEPA implementing procedures that it is publishing separate from the Code of Federal Regulations. Appendix A in 10 CFR part 1021 (formerly categorical exclusions) are now administrative and routine actions that do not require NEPA review. DOE is also revising 10 CFR part 205, subpart W, to remove the NEPA procedures from its Presidential permit regulations.”

Generally, the changes mean that DOE and the National Nuclear Security Administration (NNSA) will be able to move forward with projects quicker and with less risk of third-party lawsuits.

The Categorical exclusion (CATEX) list, which determines which NEPA actions are not subject to an environmental assessment or impact statement, remains unchanged. 

 See the full notice of the interim final rule by clicking here. The explanation for these procedures included in the full document is as follows:

“The Supreme Court could not have been clearer in Seven County that NEPA is a procedural statute. See Seven County, 145 S. Ct. 1507 (“NEPA is a purely procedural statute.”); see id. at 1510 (“NEPA is purely procedural…. NEPA does not mandate particular results, but simply prescribes the necessary process for an agency’s environmental review of a project”); (internal quotation omitted); id. …(“Simply stated, NEPA is a procedural cross-check, not a substantive roadblock.”).”

DOE has stated that the new rules will start immediately after they are published in the Federal Register. Following publication, the general public will have 30 days to comments on the rules. 

ECA will continue to provide updates as the rulemaking develops.