Recent amendments to the National Environmental Policy Act (NEPA), which Congress included in the Fiscal Responsibility Act of 2023 (FRA), aim to streamline federal environmental review by imposing time limits, clarifying the scope of review and agencies’ roles, and narrowing some key definitions. Most of the amendments simply codify regulatory definitions or agency practices already in effect, so the practical impact of the changes is likely to be limited. Nonetheless, the amendment of NEPA is noteworthy in its own right and could signal a new willingness in Congress to address a process often seen as cumbersome and prone to delay.
The NEPA amendments included in the FRA, which President Biden signed into law on June 3, include the following clarifications and revisions:[1]
- Major Federal Action: A “major federal action” to which NEPA applies is now defined to include only an action the lead agency “determines is subject to substantial Federal control and responsibility,” rather than any action “potentially subject to Federal control and responsibility.” Consistent with current Council on Environmental Quality (CEQ) regulations, the definition explicitly excludes non-federal actions with “no or minimal” federal funding or involvement, non-discretionary activities, and activities with effects wholly outside U.S. jurisdiction, among other things.
- Scope of Review: NEPA now requires an agency to consider only the “reasonably foreseeable” effects of its action, rather than the “environmental impact” of the action. Similarly, the alternatives to the proposed action that an agency must consider are now limited to “a reasonable range of alternatives,” defined as those that are “technically and economically feasible, and meet the purpose and need of the proposal.” These changes largely codify existing CEQ regulations and well established principles of NEPA jurisprudence. Additionally, an agency must now identify only the “irreversible and irretrievable commitments of Federal resources” involved in an action, rather than all “irreversible and irretrievable commitments of resources” associated with the action.
- Time Limits: The amendments include time limits for completing NEPA review documents, as well as page limits for those documents: two years and 150 pages (excluding appendices, etc.) for an environmental impact statement, unless the proposed action is of “extraordinary complexity,” and one year and 75 pages for an environmental assessment. Again, these limits are consistent with current CEQ regulations, but contain fewer exceptions. If experience under other statutes is any guide, project proponents are likely to find it difficult to enforce the time limits against federal agencies.
- Programmatic Review: Where an agency has prepared a programmatic environmental document for which judicial review was available, a subsequent environmental document may rely on the analysis in the programmatic document “without additional review of the analysis,” absent substantial new circumstances or information bearing on the significance of adverse effects, and may continue to rely on the analysis after five years, provided it reevaluates the analysis and underlying assumptions. This provision appears intended to encourage tiering and incorporation by reference and to limit challenges to those practices, which have been the subject of frequent litigation in programmatic contexts such as forest planning.
- Agency Roles, Other Changes: The amendments codify a process for clarifying and coordinating the roles of lead and cooperating agencies. In addition, “energy storage” projects are now explicitly covered under the FAST 41 rules aimed at streamlining major infrastructure project approval. Finally, Congress ratified, an/or ordered expedited approval of, all permits associated with the Mountain Valley Pipeline project and exempted such approvals from judicial review.
As noted above, the practical effect of the amendments will be limited, primarily because most of the changes were already embodied in the current CEQ regulations and agency practice. Nonetheless, the statutory amendments will make it more difficult for changing administrations to revise the standards and procedures for NEPA review and may indicate that Congress has the appetite to undertake substantive NEPA reform.
FOOTNOTES
[1] The primary purpose of the FRA was to increase the federal debt ceiling.