On September 14, 2020, the Council on Environmental Quality (CEQ) issued nonbinding guidance to agencies to help them comply with the National Environmental Policy Act (NEPA) during emergencies. The guidance comes less than three months after President Trump signed an Executive Order on “Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities,” which was the subject of a previous news alert. The guidance updates and replaces previous CEQ guidance on this topic. The guidance is effective immediately and not subject to public notice and comment.

Existing NEPA regulations, 40 C.F.R. § 1506.12, already recognize some emergency situations will require urgent agency action that cannot wait for the agency to prepare an environmental impact statement (EIS) to evaluate significant environmental impacts before responding. In those rare situations, the regulations allow agencies to consult with the CEQ to make “alternative arrangements” instead. The new NEPA guidance, including its two “attachments,” builds on that authority by clarifying the process for identifying those alternative arrangements. It then addresses those emergency situations in which the agency’s urgent response is unlikely to have significant effects and thus ordinarily might allow the agency to prepare an environmental assessment (EA) or rely on a categorical exclusion. It identifies the following types of emergencies: “natural disasters, catastrophic wildfires, threats to species and their habitat, economic crisis, infectious disease outbreaks, potential dam failures, and insect infestations.” Notably, the CEQ guidance does not (and legally cannot) exempt any activities from NEPA.

Environmental Impact Statements

CEQ amended the regulations addressing emergency circumstances earlier this year to clarify that they provide for alternative arrangements for compliance with NEPA. The new guidance further clarifies that agencies should take the initiative in developing these alternative arrangements based on emergency-specific facts and circumstances and in consulting with CEQ. While the alternative arrangements must address the actions necessary to respond immediately to the impacts of an emergency, the long-term response to the emergency remains subject to the regular NEPA process.

Attachment 1 to the guidance provides agencies with a “step-by-step process” for determining the appropriate path for the NEPA review of actions proposed in response to an emergency situation and describes the factors for an agency to address when requesting and designing alternative arrangements. Once the agency develops the alternative arrangements, the guidance states the CEQ will provide documentation detailing the alternative arrangements and the considerations on which they are based.

Finally, the guidance reiterates that alternative arrangements do not waive the requirement to comply with NEPA, but establish an alternative means for compliance. Final agency action taken pursuant to alternative arrangements may also be subject to judicial review.

Environmental Assessments

Attachment 2 to the guidance addresses situations where an agency can prepare a “focused, concise and timely” EA when considering proposals with environmental impacts that are non-significant or of uncertain significance. This guidance seemingly would be equally applicable for EAs in emergency and non-emergency situations.

When preparing an EA, the agency should briefly describe information that substantiates the purpose and need for the action and incorporate by reference information that is reasonably available to the public. Additionally, the agency should briefly describe the existing conditions and the projected future conditions of the area impacted by the action, with the goal to show that environmental effects have been considered and the facts found indicate no significant impact.

The guidance also explains that the agency should list and briefly describe its proposed action and reasonable alternatives that meet the purpose and need. The guidance emphasizes that the agency must use its discretion to ensure the number and range of reasonable alternatives is not arbitrary or capricious. If there is no conflict over the effects of the proposed action, the agency can consider the proposed action and proceed without consideration of additional alternatives. Otherwise, the agency must identify reasonable alternatives that meet the action’s purpose and need, consistent with NEPA section 102(2)(E).

When it comes to the description of the environmental impacts of the proposed action and alternatives, the guidance explains that the agency should provide enough information to support a determination to prepare either an EIS or a finding of no significant impact (FONSI). The focus should be on whether the action would significantly affect the quality of the human environment. The guidance states that the agency may either discuss the impacts of each alternative separately or together in a comparative description. Finally, the agency may contrast the impacts of the proposed action and alternatives with the current condition and expected future condition in the absence of the action. According to the guidance, this constitutes consideration of a no action alternative as well as demonstrating the need for the action.

The above guidance notwithstanding, agencies must continue their efforts to notify and inform the affected public and relevant Federal, State, Tribal, and local agency representatives of the agency activities and proposed actions. Agencies must comply with the CEQ NEPA regulatory requirements for content, interagency coordination, and public involvement to the extent practicable. 40 C.F.R. §§ 1501.5, 1501.6, and 1506.6.

Visit Beveridge & Diamond’s COVID-19 EH&S Resource Center for more information on navigating the global pandemic. B&D's Infrastructure and Project Development and Permitting practice group helps clients through all stages in project development, from conception through planning, permitting, construction, and litigation. We represent infrastructure project developers, owners, and operators, including private developers, corporations, states, municipalities, and governmental authorities. Our Endangered Species and Wildlife Protection practice group provides strategic counseling and compliance advice to project proponents in all industries to minimize the impacts of threatened and endangered species listings and critical habitat designations on our clients’ activities. For more information please contact the authors.