On July 10, 2013, Rep. Tom Marino (R-PA) introduced a bill in the House that would amend the Administrative Procedure Act (APA) to streamline the environmental review process under the National Environmental Policy Act (NEPA). The bill has bipartisan support and was recently ordered to be reported on July 31, 2013. Titled the RAPID Act (Responsibility and Professionally Invigorating Development Act of 2013), H.R. 2641 would set timelines on the preparation of environmental review documents, limit the reviews that could be performed on a major federal action, and allow agencies to tier to the environmental review done by state agencies or by federal agencies on similar actions. While the Act represents a strong attempt at worthwhile NEPA reform, it may also present complicated judicial review questions should it become law.
The RAPID Act may provide a needed element of certainty to the NEPA review process by establishing deadlines for the completion of environmental reviews. According to the Act, the lead agency would have two years to issue an environmental impact statement (EIS) and one year to issue an environmental assessment (EA). The clock would start running on the date on which the agency published a notice of intent to prepare the EIS or EA, or after the agency receives a request to initiate a project. The Act would allow for extensions of time (up to 1 year for an EIS and 180 days for an EA) in two situations: demonstration of good cause or an agreement among the lead agency, the project sponsor, and all participating agencies. If the agency fails to meet the applicable deadline, however, the action or project would be deemed approved.
Consistent with NEPA’s directive to reduce paperwork, the proposed bill would also reduce the level of duplicative effort involved with projects that entail either state and federal review or review by multiple federal agencies. A federal agency would be allowed to adopt the state law equivalent of an EA or EIS in place of preparing its own EA or EIS (provided that the state law is similar to NEPA) in two situations: if a state document was prepared for the same project or if a state document was prepared for a similar project with similar environmental impacts and that project is in geographic proximity to the proposed action. Additionally, the Act would limit an agency to preparing only one EIS and EA for a project. An agency would be free to prepare supplemental analyses, but the Act would prohibit a federal agency from preparing an independent NEPA analysis for a project once the lead agency issues a record of decision.
While the NEPA review process could benefit from reform, the RAPID Act may produce as many complications as it does benefits, and it overlooks an area where reform is truly needed. The imposition of a timeline for completing environmental review documents would be tremendously helpful to government and private industry alike. However, the benefit of deeming a project approved if an agency fails to meet the one- or two-year deadline could be short-lived if the “approval” is challenged in court. Without a complete environmental review document and an articulated basis for a decision, it is doubtful that a project would survive a legal challenge because the Act does not shield automatically approved decisions from environmental review.
The limitations on the number of NEPA documents allowed for a project may potentially reduce the time needed for project approval and result in cost savings as well. The Act, however, is silent in regards to the treatment of a programmatic EIS. A programmatic EIS or EA, like those prepared for land management plants or oil and gas lease sales, is tailored to help move site-specific actions through the NEPA process quickly. By limiting the number of EAs or EISs allowed for an action, the proposed legislation may have the unintended consequence of eliminating this beneficial approach to NEPA review.
Finally, the biggest area in need of reform is left unaddressed by the Act: NEPA’s statute of limitations. Unless limited by other law, the statute of limitations to challenge a final agency action under NEPA pursuant to the APA is six years. Considering that work on an approved project begins relatively shortly after the record of decision is issued, allowing for a six-year period to bring a legal challenge presents government and industry with significant uncertainty. Any attempt at NEPA reform should address this issue. The RAPID Act still has a long path ahead to becoming law, but the general goal of NEPA reform appears to have momentum.
