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Barbara Craig is a partner of the firm practicing in the Natural Resources and Land Use group. She focuses her practice on federal environmental and natural resources law with an emphasis on endangered species compliance, and forestry and energy facility permitting and compliance issues. Barbara has extensive experience on issues involving the Endangered Species Act (ESA), National Forest Management Act (NFMA), Federal Land Policy and Management Act, Federal Power Act (FPA), Natural Gas Act, Marine Mammal Protection Act (MMPA), Migratory Bird Treaty Act (MBTA), Bald and Golden Eagle Protection Act (Eagle Act), National Environmental Policy Act (NEPA), National Historic Preservation Act (NHPA), Clean Water Act (CWA) and Administrative Procedures Act. Representative clients include forestry companies and associations, ports, pulp and paper interests, developers and owners of hydropower dams, wind energy projects, utilities, and oil and gas facilities in complex permitting matters. Governor Kulongoski appointed Barbara to the Oregon  Board of Forestry, where she served from 2004 through 2008.

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Introduction

On May 1, 2024, the Council on Environmental Quality (“CEQ”) promulgated the Bipartisan Permitting Reform Implementation Rule (“Final Rule”), 89 Fed. Reg. 35,442 (May 1, 2024), which is better known as Phase 2 of the Biden Administration’s revisions to the regulations that implement the National Environmental Policy Act (“NEPA”).

NEPA imposes a procedural requirement

Introduction

On July 31, 2023, the Council on Environmental Quality (“CEQ”) proposed the Bipartisan Permitting Reform Implementation Rule (“Proposed Rule”), 88 Fed. Reg. 49,924 (July 31, 2023), which is better known as Phase 2 of the Biden Administration’s revisions to the regulations that implement the National Environmental Policy Act (“NEPA”).

NEPA imposes a procedural requirement that does not mandate outcomes, only informed decision making. Despite its procedural nature, NEPA is one of the primary mechanisms for project opponents to challenge projects and is the most litigated federal statute. CEQ describes the changes in the Proposed Rule as promoting efficient and effective environmental review while increasing regulatory certainty. Given the history of NEPA litigation, and the significant changes in the Proposed Rule, it is likely that these changes will open new pathways for litigation and require courts to interpret the changes before providing regulatory certainty.

Background Leading to the Proposed Rule

Prior to 2020, the regulations implementing NEPA, 40 C.F.R. §§ 1500-1508, had not been meaningfully updated since 1978. In 2020, CEQ finalized significant changes to the regulations, which were designed to speed up project review and limit agency discretion in considering impacts beyond the immediately proposed project. In 2021 CEQ started a phased process to revise the NEPA regulations. In April 2022, CEQ issued its Phase I Rule, 87 Fed. Reg. 23,453 (April 20, 2022), which restored the 1978 regulations’ provisions on the purpose and need statement, defined “effects of the action,” and restored agency discretion to adopt procedures beyond those contained in the CEQ regulations.Continue Reading Phase 2 NEPA Revisions: Significant Changes Proposed by CEQ in the Proposed Bipartisan Permitting Reform Rule