National Environmental Policy Act Regulations: Phase 2 – Does NEPA Apply?

This is the second in a series of six eAlerts on the Bipartisan Permitting Reform Implementation Rule published in the Federal Register on May 1, 2024 (Final Rule) by the Council on Environmental Quality (CEQ). The Final Rule amends CEQ's National Environmental Policy Act (NEPA) regulations (40 CFR Parts 1500-1508). We previously published an eAlert providing background and a brief overview of the Final Rule.

NEPA requires that where a major federal action will have a significant impact on the quality of the human environment, the federal action agency must prepare a detailed statement describing, among other things, the impacts of the action, any adverse effects that cannot be avoided, alternatives to the proposed action, and any irreversible and irretrievable commitments of resources that would be involved in the proposed action. As such, the threshold determinations a federal agency must make with respect to any action is whether that action qualifies as a "major