The Council on Environmental Quality is proposing major changes to its regulations concerning the National Environmental Policy Act (NEPA), that if implemented could have impacts on advanced reactor licensing. These changes, if put into effect, will be among the most monumental revisions to the NEPA process since 1978, and come at a time when the US Nuclear Regulatory Commission (NRC) is already looking at streamlining advanced reactor environmental reviews.
NEPA requires federal agencies, including the NRC, to review the environmental impact of major federal actions. NEPA is the reason why the NRC, for example, issues Environmental Impact Statements (EIS) when licensing new reactors, and applicants must submit environmental reports with their applications. NEPA is a cornerstone of environmental law and serves a very important role in protecting the environment. NEPA sets forth a process to gather information on, analyze, and document the potential environmental effects of a proposed project before it is approved by the government.
However, there is a bipartisan understanding that some aspects of the statute can create significant burdens without any commensurate benefit. For example, NEPA is a process statute—it does not mandate a specific outcome, only that the government analyzes the environmental impacts of a project it plays a major role in. Yet despite the fact that the NEPA review has no role in evaluating safety, and does not mandate any specific outcomes, following the process of the review can take up a third of NRC staff resources related to new reactor license applications. These issues are described more in our paper with the Nuclear Innovation Alliance, Nuclear Innovation and NEPA (Nuclear & NEPA).
CEQ helps agencies implement their NEPA obligations by issuing regulations interpreting the statute, and CEQ’s views are looked upon deferentially by agencies and the courts—thus its changes here are being closely scrutinized. Many of the proposed changes are very contentious and will undoubtedly be challenged in court. However, certain other changes represent more practical and targeted reforms in the NEPA process, which align with recommendations from Nuclear & NEPA. We highlight a sample below:
- Alternatives: The proposed rule would change the definition of “reasonable alternative” to one that must be technically and economically feasible and be within the jurisdiction of the lead agency. This latter requirement in particular may lead to significant reductions in the scope of NRC alternatives analyses—the NRC EIS for the Vogtle expansion project, for example, evaluated in some form at least ten different energy technology alternatives instead of nuclear power, despite that fact that the application to the NRC was for a nuclear reactor at an already-operating nuclear power plant. Nuclear & NEPA at 16.
- Applicant-Drafted Environmental Evaluations: The proposal appears to give agencies an avenue to allow applicants to take a lead role in preparing environmental evaluations, such as EISs, as long as the agency independently evaluates the applicant’s work. Right now for major NRC licensing actions an applicant drafts a very lengthy “environmental report,” which is then duplicated by the NRC staff into the formal agency EIS—essentially doubling much of the work for no gain. Nuclear & NEPA at 25.
- Mitigated FONSIs: The proposed rule would try to codify a practice adopted by some agencies (although less so the NRC) to use mitigation measures committed to as part of the application and agency review to find that there will be no “significant” impact on the environment from the proposed project as mitigated—so-called “mitigated FONSIs.” This process often allows the agency to be able to issue a much shorter Environmental Assessment (EA) instead of the much larger EIS. As advanced reactors will employ many passive mitigation measures to reduce their impact on the public and environment, this feature of NEPA, if built out more, could prove very useful for streamlining NRC environmental reviews. Nuclear & NEPA at 20.
The CEQ proposal, of course, makes many other suggestions as it touches on all aspects of NEPA. Hogan Lovells’ environmental practice has issued a thorough client alert on this proposed rulemaking, which we encourage interested persons to read. But just to provide a sample of other changes that may impact nuclear reactor environmental reviews:
- Page Length: The proposal establishes a presumptive 75 page limit for EAs that can be overcome in writing by an agency official. It also enforces the original page limits given for EISs of less than 150 pages for normal proposals, with extensions up to 300 pages with written agency approval. To provide a comparison, the EIS and related documentation for the Vogtle and Fermi expansion projects numbered between 1500 and 2000 pages (including responses to comments).
- Narrowed NEPA Review Trigger: The proposed rule would narrow the circumstances triggering NEPA’s review requirements, by changing the definition of “major federal action” to specifically exclude non-federal projects with minimal federal funding or involvement. This could impact DOE NEPA review requirements when supporting new nuclear projects.
Comments on the CEQ proposal are due by March 10, 2020. We encourage interested parties to comment and reach out about how to do so. We also encourage those interested in NEPA streamlining to show your support for a recent NRC proposal to draft a generic EIS for advanced reactors, which can materially improve NRC new reactor reviews. For more information, please refer to our previous blog entry.
If you have any questions related to the NRC and environmental reviews, please feel free to contact the blog authors.