NEPA Changes – Climate Change and EJ evaluations

The Council on Environmental Quality (CEQ) published the final rule on May 1, 2024, with Phase 2 revisions to the National Environmental Policy Act (NEPA). Changes to NEPA include changing or replacing the word “impact” to “effect” for general clarity. The rule also sets page limits for reports, limits to review timelines for the Environmental Assessment (EA) and Environmental Impact Statement (EIS), changes to establishing categorical exemptions (CE), and increasing public engagement.  More importantly, the rule requires federal agencies to consider the impacts proposed actions could have on climate change and Environmental Justice (EJ) concerns.

What do you need to know?

While the NEPA process has included consideration of climate effects as part of an agency’s requirement to consider the cumulative impacts of their actions during environmental review, the rule formally codifies this requirement. New projects or actions will need to consider the possible impacts on the climate when considering the “effects” of those actions. Under the rule, “effects” is defined to include “the contribution of a proposed action and its alternatives to climate change, and the reasonably foreseeable effects of climate change on the proposed action and its alternatives.”

Environmental justice concerns have also been given a focus under the new rule. Along with adding “adverse effects on communities with environmental justice concerns” to the expanded definition of “effects,” the rule includes a separate definition of “environmental justice” for the first time. Under the new rule, EJ is defined as:

[T]he just treatment and meaningful involvement of all people, regardless of income, race, color, national origin, Tribal affiliation. Or disability, in agency decision making and other Federal activities that affect human health and the environment so that people:

(1) Are fully protected from disproportionate and adverse human health and environmental effects (including risks) and hazards, including those related to climate change, the cumulative impacts of environmental and other burdens, and the legacy of racism or other structural or systemic barriers; and

(2) Have equitable access to a healthy, sustainable, and resilient environment in which to live, play, work learn, grow, worship, and engage in cultural and subsistence practices.

As part of emphasizing EJ and climate change the rule made changes to expand the scope of public engagement in the NEPA process. Agencies will be required to make draft EAs available for public comment and will be required to take the public’s input into consideration when developing the final draft. Agencies will be required to provide public notification of NEPA-related hearings and meetings and will need to make a draft EIS available at least fifteen days in advance if it is the subject of a public meeting. The new rule has changed the title of section 1501.9 from “Scoping” – a process done early on in NEPA review to determine the overall scope of analysis required for a proposed action – to “Public and Government Engagement.” The new rule emphasizes that the public should be included in the scoping phase of the NEPA process and requires agencies to engage the public where possible.

How are Federal Agencies addressing changes?

Each Federal Agency will have a slightly different take on climate change, EJ, and public participation requirements in the NEPA process. As an example, the Department of Energy (DOE) not only includes EJScreen, but also DOE’s Energy Justice Mapping tool, CEQ’s Climate and Economic Justice Screening Tool, and the Centers for Disease Control and Prevention’s (CDC’s) EJ index in an initial document, the Environmental Information Volume or EIV. DOE requires an EIV to evaluate the need for a formal EA or EIS.

• U.S. EPA’s EJScreen is an EJ mapping and screening tool that provides a nationally consistent dataset and approach to identifying EJ and disadvantaged communities (EPA, 2018). The outputs from EJScreen are maps and reports that present three kinds of information: environmental indicators (13), socioeconomic indicators (7), EJ indicators (13), and supplemental indexes (13). The standard unit of analysis in EJScreen is the census block group (CBG), the finest resolution level of detail for U.S. Census Bureau data.
• CEQ’s Climate and Economic Justice Screening Tool is a geospatial mapping tool that identifies disadvantaged communities that are facing significant burdens in any of the following eight categories: climate change, energy, health, housing, legacy pollution, transportation, water and wastewater, and workforce development. The screening tool was specifically developed to provide a uniform whole-of-government definition of disadvantaged communities for federal agencies to target Justice40 investment benefits.
• DOE’s Energy Justice Mapping Tool is a tool that identifies census tracts that DOE has categorized as disadvantaged communities pursuant to Executive Order 14008, “Tackling the Climate Crisis at Home and Abroad.”
• CDC’s Environmental Justice Index is an index that uses data from the U.S. Census Bureau, the U.S. EPA, the U.S. Mine Safety and Health Administration, and the CDC to rank the cumulative impacts of environmental injustice on health for subdivisions of counties (census tracts) for which the U.S. Census Bureau collects statistical The Environmental Justice Index ranks each tract on 36 environmental, social, and health factors and groups them into three overarching modules and 10 different domains.

DOE also requires assessment of “communities with unique characteristics.” Communities with unique characteristics that should be identified include migrant worker communities, minority or low-income elderly, home-bound communities, or traditional, cultural, or religious communities with specific ties to the lands or waters near the site(s). For example, American Indian tribes may have specific rights or a cultural or spiritual attachment to natural resources at a site(s) (e.g., wild rice, sweet grasses, and other traditional medicines). However, unique EJ community characteristics can also be physical, such as local community access routes that facilitate a community’s ability to function normally. Low-income communities with unique characteristics may be found in areas of low-income housing (private or federally subsidized).

The nature of the unique characteristic of a low-income community may need to be determined by interviews and community visits. The DOE Recipient should remain sensitive to how project-related activities could create pathways for a disproportionately high and adverse impact on such communities.

What’s Next?

The rule is effective July 1, 2024, and federal agencies are still in the process of amending or updating NEPA policies and procedures for projects within their jurisdictions. If you have a pending project that triggers NEPA reviews, start discussions early on how the rule changes are being implemented for your project. ALL4 encourages clients to review project schedules and milestones to evaluate potential impacts from public outreach or additional climate or EJ evaluations.

If you have questions regarding EJ or climate change evaluations, please contact Rich Hamel or Karen Thompson.