Proposed Legislative and Executive Branch Changes to NEPA Process

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[co-author: Edward Mahaffey]

The procedures associated with the National Environmental Policy Act (NEPA), particularly Environmental Impact Statements (EISs), are undergoing change.[1] On one hand, the Executive Branch under the Biden administration, including the Council on Environmental Quality (CEQ),[2] is moving towards holistically addressing environmental reforms to the NEPA process, such as greater consideration of climate change impacts. On the other hand, the bipartisan Congressional infrastructure bill in its current form, which seeks to speed up the timing for evaluating projects with a federal government overlay, may have a countervailing effect of undermining NEPA’s environmental objectives in the process.

EIS Timeframes

Due in part to federal agency concerns about challenges to their actions in court under the Administrative Procedure Act, EISs tend to be extremely thorough, and time-consuming to prepare. It is not surprising that the process can take a long time. A study by the CEQ found that the median length of a Final EIS between 2013 and 2018 was 447 pages.[3] According to the National Association of Environmental Professionals (NAEP), the average Final EIS published in 2018 took 1.7 years to prepare from the Draft EIS and 3.3 years to prepare the Draft EIS itself.[4]

NAEP asserts, however, that such delays are caused less by the need for thoroughness than by "1) limited agency staff for reviews, 2) limited project funding, and 3) limited staff or manager training."[5] Moreover, only a relatively small number of government actions require a full EIS;[6] the CEQ observed in 2013 that "by using the NEPA process in place by the Federal Highway Administration – over 95% of the reviews resulted in a Categorical Exclusion, not an EIS."[7]

Past Executive Orders and Regulations

During the Trump Administration, the CEQ cited delays as justification for several major changes made to the NEPA process. These regulatory changes were designed to hasten the process for EISs in particular, beginning with the "One Federal Decision" framework of Executive Order 13807, "Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects." Under this framework, only one EIS would be prepared for a project, by a designated lead agency, regardless of how many federal agencies had jurisdiction over a particular project. Also, the time period for completion of an EIS would be limited to two years as far as possible.[8] Moreover, the new approach generally limited the scope of environmental impacts to be considered, including by eliminating the definition of "cumulative impacts,"[9] thus limiting consideration of a proposed action’s environmental effects in combination with the effects of another related action or actions. It also required agencies to "base the purpose and need" of a proposed action "on the goals of the applicant and the agency’s authority."[10] These major changes to the NEPA implementing regulations were promulgated by the CEQ on July 16, 2020.

Immediately after becoming President on January 20, 2021, Joe Biden issued Executive Order 13990, which, among other things, rescinded Executive Order 13807.[11] Although the CEQ’s regulations (the 2020 NEPA Rule) technically remain in place, their implementation deadline was extended by two years.[12]

Proposed Changes

The version of the bipartisan infrastructure bill that passed the Senate on August 10 also contains provisions intended to streamline the NEPA review process. The provisions are similar to those facilitated by the repealed Trump Executive Order.[13] The bill would generally require a single joint EIS rather than multiple ones for each interagency project, require a Record of Decision (ROD) to be issued within 90 days of a Final EIS, and seek to limit the entire NEPA process for any project to two years.[14] Some types of projects, including certain "gathering lines" on federal land servicing oil and gas wells, would also be eligible for Categorical Exclusions.[15]

Some commentators have posited that the proposed legislative changes to NEPA will actually be environmentally beneficial, on the grounds that current NEPA regulations "are often the cause of the death, extreme delay and extreme cost for the sorts of projects that we need most desperately, such as high-density housing or public transit."[16] Most environmental groups that have commented on the provisions, however, have rejected this viewpoint. Rather, they have found it implausible, for example, that the exemption for gathering lines would be positive for the environment. Moreover, organizations such as the Natural Resources Defense Council (NRDC) also have criticized the bill’s provisions for accelerating the NEPA process to the detriment of the environment. For example, the NRDC has opined that the provisions would undermine a core aspect of NEPA: the obligation to consider alternatives. By allowing "agencies to focus their attention on the preferred alternative," the bill would undermine the principle that, for example, "the Federal Energy Regulatory Commission should consider energy efficiency or renewable energy options in addition to a proposed new natural gas interstate pipeline." Further, the provisions designed to encourage a two-year limit to complete the NEPA process would excessively transfer authority over the NEPA process from agencies with specifically environmental expertise to the Office of Management and Budget,[17] an arm of the Executive Branch.

With negotiations over the bill ongoing, it remains to be seen whether the NEPA provisions become law. It is possible, however, that members of Congress opposed to the provisions on environmental grounds nevertheless may eventually vote for a version of the bill containing them as part of a compromise to secure approval for environmental provisions in the parallel reconciliation bill.[18]

Developments at Federal Agencies

In addition to Executive Orders, individual agencies have begun to consider changes to their own NEPA regulations since the change in administrations. For instance, the Federal Energy Regulatory Commission (FERC) is reevaluating its application of NEPA and the Natural Gas Act (NGA) to its gas pipeline approval process. FERC has begun to scrutinize the climate change and environmental justice impacts of pipelines more closely, partly in response to rulings by the DC Circuit Court of Appeals during the Trump Administration overturning pipeline permits granted by the agency, and also is considering related revisions to its 1999 gas pipeline guidance.[19]

CEQ Plans

More dramatic changes, affecting the Executive Branch as a whole, are underway at the CEQ. First, the CEQ announced a new proposed rulemaking on October 7, 2021, proposing to rescind parts of the 2020 NEPA Rule. For example, the proposed rule would restore a more expansive concept of the "purpose and need" of proposed actions, as well as a broader concept of environmental impacts, including the reinstatement of the definition of cumulative impacts. The proposed rule also would allow agencies to adopt their own NEPA implementing procedures that exceed the CEQ’s requirements, which the 2020 NEPA Rule prohibits. The comment period on the proposed regulations ends November 22, 2021.[20] On the other hand, the proposed regulation does not remove the two-year time limit for completing EISs, which has been criticized as in tension with the new rule’s goal of encouraging federal agencies to consider alternative courses of action more extensively.[21]

Additionally, readers should be on alert for CEQ’s upcoming issuance of a further round of proposed regulatory changes, this time focusing on the impacts of climate change and environmental justice in the NEPA evaluation process.[22]

[1] Under NEPA and its implementing regulations, an EIS is generally required to be prepared for federal actions that would have substantial environmental impacts. 40 CFR § 1501.

[2] The CEQ is an arm of the White House that is responsible for coordinating environmental policy across the federal government.

[3] https://ceq.doe.gov/docs/nepa-practice/CEQ_EIS_Length_Report_2020-6-12.pdf.

[4] https://naep.memberclicks.net/assets/documents/2019/NEPA_Annual_Report_2018.pdf, 10.

[5] Id., 32.

[6] As noted, an EIS only is required for proposed actions that would have significant environmental impacts. A less onerous Environmental Assessment (EA) is commonly used to determine whether a full EIS is necessary. Moreover, a Categorical Exclusion may apply when a proposed action is of a type that the agency has determined does not have significant environmental impacts, making even an EA unnecessary.

[7] Id., 35.

[8] 82 FR 40463.

[9] The definition of "cumulative impacts" in the prior version of the regulations was: "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time." 40 CFR 1508.7 (1978).

[10] 85 FR 43304; 40 CFR 1500-1518.

[11] 86 FR 7042.

[12] 86 FR 34154.

[13] https://www.reuters.com/legal/litigation/us-infrastructure-deal-threatens-undercut-key-environmental-law-2021-09-29/.

[14] https://www.congress.gov/bill/117th-congress/house-bill/3684/text, §11311-11319 and 70801.

[15] https://www.congress.gov/bill/117th-congress/house-bill/3684/text, §11318. Gathering line projects are pipelines for transporting natural gas or oil from production sites to collection points.

[16] https://www.michigandaily.com/columns/congress-is-weakening-the-national-environmental-policy-act-thats-good-for-the-environment/.

[17] https://www.nrdc.org/experts/sharon-buccino/infrastructure-done-right-voice-those-affected.

[18] https://www.reuters.com/legal/litigation/us-infrastructure-deal-threatens-undercut-key-environmental-law-2021-09-29/.

[19] https://www.politico.com/news/2021/09/29/democratic-ferc-commissioners-pipeling-approvals-514719.

[20] 86 FR 55757.

[21] https://www.law360.com/compliance/articles/1428890.

[22] https://www.eenews.net/articles/white-house-outlines-plan-to-overhaul-trump-nepa-rules/.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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