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Summarizing recent changes to NEPA

August 10, 2023
Summarizing recent changes to NEPA

The National Environmental Policy Act (NEPA) has undergone several recent changes enacted by Congress and the Biden administration. To help clients navigate these proposed amendments to NEPA regulations, Barr is tracking the changes and how they might affect projects subject to federal actions that require environmental review.

Recent amendments to NEPA requirements

NEPA requires federal agencies to consider the potential environmental consequences of their actions, such as funding or permitting, and to consult with other interested agencies. Agencies must also document the analysis and make this information available to the public for comment before the implementation of their actions. Implementing NEPA policy is the responsibility of the Council on Environmental Quality (CEQ), which issues guidance and regulations regarding the NEPA process.

...the first set of comprehensive changes to the law in NEPA’s 50-year history.

Signed into law on June 3, the Fiscal Responsibility Act (FRA) of 2023 contained amendments to NEPA. This signifies the first set of comprehensive changes to the law in NEPA’s 50-year history. These changes, while unlikely to significantly impact current NEPA practices, represent efforts to streamline the NEPA review process.

On July 28, 2023, the Biden administration announced that the CEQ is proposing a new rule to revise its regulations for implementing the FRA’s amendments to NEPA. The following is a summary of the changes made to NEPA as part of the 2023 FRA, as well as a summary of the reforms proposed in the CEQ’s new proposed rule. The 2023 FRA’s NEPA revisions include both substantive changes and procedural changes, which are also summarized below.

Substantive changes to NEPA

There were three substantive changes to the regulations included under the 2023 FRA, which generally reflect an effort to streamline and/or narrow NEPA analysis.

  1. “Reasonably foreseeable” environmental effects: Environmental analysis is now limited to the reasonably foreseeable environmental effects of the project, instead of including indirect and cumulative impacts as previously required under the Biden administration’s “Final Rule.” This “Final Rule” requirement was finalized in 2022 to roll back the Trump administration’s 2020 changes to NEPA.

  2. Reasonable range of alternatives: An agency’s consideration of alternatives must be “technically and economically feasible and meet the purpose and need of the proposal.” The agency would also have to consider “an analysis of any negative environmental impacts of not implementing the proposed agency action in the case of a no-action alternative.” This language has been updated from its original iteration of considering “alternatives to the proposed action.” This emphasizes that for an alternative to be considered, it cannot vary widely from the original purpose and intent of the project. Although this has been a longstanding practice with NEPA, it is now codified into law.

  3. Major federal action: This has been defined as an action where the federal government maintains “substantial” control and responsibility. Projects in which federal issues are limited and the remaining issues are state and local are now likely to be exempt from NEPA review. In addition, agency activities with effects that are located entirely outside of the United States cannot be subject to NEPA review.

Procedural changes to NEPA (i.e., NEPA review streamlining)

To a large extent, the procedural changes from the new legislation represent existing practices and case law developed over the years to flesh out NEPA requirements. These changes are unlikely to significantly change current NEPA practice. Procedural changes in the FRA include:

Lead agency: When multiple federal agencies have jurisdiction over different parts of a project, a single lead agency will be designated to develop and coordinate the environmental review to avoid duplicative efforts. In case there is a dispute over which agency should be the lead or joint lead agency, the FRA includes a mechanism to appoint state, tribal, or local agencies as “joint lead agencies.”

Need for NEPA analysis: The amendments clarify that no further NEPA analysis is required if the proposed agency action is not a discretionary or final agency action, is categorically excluded, or would conflict with another provision of law.

Page limits: The following page limits have been enacted for various documents; however, the new page limits do not include appendices.

  • 75 pages for Environmental Assessments (EAs)

  • 150 pages for most Environmental Impact Statements (EISs)

  • 300 pages for EISs of actions of extraordinary complexity

Deadlines: The amendments include a one-year deadline for the completion of EAs and a two-year deadline for the completion of EISs. They also provide an explicit path for judicial review of an agency’s purported failure to meet these deadlines.

Programmatic environmental review documents: When an agency prepares a programmatic environmental document, they can use it for five years unless there are substantial new circumstances or information about the significance of adverse effects that bear weight on the analysis.

Categorical exclusions: A federal agency can adopt categorical exclusions listed in another federal agency’s NEPA procedures if the category applies to the project at hand.

Third-party NEPA document preparation: FRA amendments allow a government agency to grant responsibility of environmental review document preparation to the project sponsor with agency supervision, provided that the agency “independently evaluate the environmental document and … take responsibility for the contents.” This is consistent with current NEPA regulation and has now been made official.

E-NEPA: Within one year, the CEQ will evaluate the potential for a single online portal used for NEPA to increase communication between agencies and applicants.

Impact of recent NEPA changes

CEQ’s new proposed rule would streamline permitting for new energy projects

The CEQ’s new proposed rule would streamline permitting for new energy projects, particularly clean energy, transmission, broadband, clean water, and “other crucial infrastructure.” The new rule also clarifies that projects with significant, long-lasting, positive impacts would not require an environmental impact statement. In addition, it encourages the use of programmatic environmental reviews of multiple projects rather than individual reviews to further streamline the process. The new rule would also allow federal agencies to categorically exclude more project types from NEPA review.

The new rule is a continuation of the administration’s efforts to reform the NEPA process, which began in 2022 when the Biden administration reversed a Trump administration overhaul of NEPA.

The proposed rule must go through a public comment period before the Biden administration can finalize approval. To find instructions for providing comments, go to the Federal Register’s website.

Barr will continue to track changes to NEPA and how implementation of these new rules will affect our clients and projects. Barr’s team of NEPA experts is also well-versed in the complex range of environmental issues that must be considered for projects undergoing NEPA review, including air; noise; wetlands, wildlife, and threatened and endangered species; cultural resources; human-health impacts; and greenhouse gases and climate change. To learn more about our NEPA experience, contact our team.

About the author

Veronica Parsell is a senior cultural resources specialist with nearly 15 years of experience in cultural resources management, including NEPA, Section 106 of the National Historic Preservation Act, related cultural resources laws and regulations, and agency and consulting party coordination. She has directed projects involving large tracts of public and private land as well as linear corridor projects. She has managed projects for energy clients and completed work for transmission lines, substations, power plants, solar and wind farms, and petroleum and natural gas pipelines.

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Energy ESG environment NEPA

 

Veronica Parsell - Senior Cultural Resources Specialist
Veronica Parsell
Senior Cultural Resources Specialist
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