On June 3, 2023, President Biden signed into law the Fiscal Responsibility Act of 2023 (FRA). The FRA was the result of an agreement between White House and congressional GOP negotiators. While the centerpiece of the agreement is the two-year suspension of the debt ceiling, the FRA surprisingly includes significant environmental provisions. Specifically, the FRA amends the National Environmental Policy Act (NEPA) and expedites completion of the controversial Mountain Valley Pipeline.
The most significant NEPA amendments relate to Environmental Impact Statements (EIS), Environmental Assessments (EA), and the definition of “major federal actions.” Under NEPA, all federal agencies are required to prepare an EIS or an EA assessing the environmental impact of, and alternatives to, major federal actions significantly affecting the environment. An EIS considers the “reasonably foreseeable environmental effects of the proposed agency action” and analysis of a “reasonable range” of alternatives that are “technically and economically feasible.” Part of the analysis of alternatives now includes the consideration of “any negative environmental impacts of not implementing [a] proposed agency action in the case of a no action alternative.” Further, the deadline to complete and EIS or an EA have been amended to two years and one year, respectively. A “major federal action” is now defined as “an action that the agency carrying out such action determines is subject to substantial Federal control and responsibility.” Previously, it was left to agencies to interpret whether their action was a major federal action, then, if necessary, to the courts to determine if an agency’s interpretation was reasonable. The inclusion of “substantial Federal control” narrows the scope of NEPA applicability by limiting the types of “major” actions to those that are subject to “substantial” federal control.
The new emphasis and focus on the impact of not taking a proposed action, expediting review, and narrowing the applicability of NEPA certainly contrasts with the purpose of NEPA to encourage careful consideration of federal actions which impact the environment. Going forward, NEPA-implementing agencies will likely undertake significant rulemaking to further clarify the amendments.
The FRA also expedites approval of all the permits required to complete the Mountain Valley Pipeline and upends judicial review related to the project. The pipeline is a natural gas pipeline system, currently under construction, that spans approximately 303 miles from northwestern West Virginia to southern Virginia. The pipeline has been subject to significant opposition and required permits have been put on hold, halting construction. The FRA “approves all authorizations, permits, verifications, extensions, biological opinions, incidental take statements, and any other approvals or orders issued pursuant to Federal law necessary for the construction [of the pipeline] and initial operation at full capacity.” Additionally, the FRA blocks any judicial review of actions taken by federal and state agencies in granting the aforementioned approvals. Further, the FRA gives “original and exclusive” jurisdiction to the D.C. Circuit regarding challenges to the FRA itself related to the provisions concerning the pipeline. For example, any claim alleging that an action is beyond the scope of authority conferred by the FRA. The Fourth Circuit, which originally had jurisdiction over pipeline related litigation, has blocked numerous permits.
Significant and numerous challenges are expected to both the NEPA amendments and the pipeline provisions included in the FRA.
