New Guidance to Federal Agencies Adopting and Applying Categorical Exclusions to Environmental Review

In the latest attempt to unify federal agencies’ independent application of the National Environmental Policy Act (NEPA), the Council on Environmental Quality (CEQ) issued new guidance to federal agencies for establishing, revising, adopting, and applying NEPA categorical exclusions (CatEx or CatExes)—those “major federal actions” that do not “normally” significantly affect the quality of the human environment.

Although agencies’ forthcoming CatEx adoptions will remain subject to public comment, CEQ urges agencies to develop a comprehensive and reliable record to substantiate any proposed CatExes, outlining various substantiation methods (e.g., previously completed environmental reviews, other agencies’ CatExes, agency experience and expertise).  CEQ advises agencies to consult with CEQ prior to proposing, revising, or eliminating any CatEx.  After consultation, which CEQ anticipates will take approximately 30 days, CEQ will provide the agency with a written determination regarding the agency’s proposal.

Notably, CEQ clarifies that agencies must still independently evaluate whether a CatEx is appropriate to apply to a given project, particularly where extraordinary circumstances exist that indicate a normally excluded action is likely to have reasonably foreseeable adverse effects on the human environment.  In such cases, NEPA may instead require the agency to develop an environmental assessment or environmental impact statement.

In an accompanying press release, CEQ emphasized the importance of these CatExes as a “core feature” of NEPA to streamline efficient and effective environmental review, noting frustration with permitting timelines exceeding that of actual construction for critical infrastructure projects.  We thus expect to see an influx of proposed revisions to agencies’ CatExes with a focus on infrastructure projects, such as linear projects in existing rights-of-way and routine installations or maintenance, that have consistently required little to no environmental review.  We also anticipate an increase in CatExes for projects, or project components, that are “separate in time or place” in the wake of the Supreme Court’s decision in Seven County Infrastructure Coalition, which clarified the legal deference owed to agency NEPA decisions.  Indeed, while NEPA has evolved extensively over the last year, it remains a significant and relevant legal structure in the infrastructure development arena.

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