The Council on Environmental Quality has proposed a new rule which would streamline the National Environmental Policy Act (NEPA) which is the federal law that requires review of the environmental impacts from federal projects or projects that receive federal funding. NEPA has been called by its critics as an unnecessarily long paperwork exercise that delays projects.
The Trump Administration responding to criticism from industry has proposed the most significant overhaul to the process in its history. The changes highlighted below are designed to shorten the review process and limit the scope of the review.
What is the NEPA review process?
The purpose of NEPA is to force the federal government to review the impacts of projects it controls or that receive federal funding. Unless the project or action falls under an exemption, the agency must prepare an Environmental Assessment to determine if it will have significant impacts on the environment. If the project or action will not have significant impacts, the agency issues a “finding of no significant impacts” (FONSI). If the review shows the project or action will have significant impacts on the environment, the agency must prepare an Environmental Impact Statement (EIS). The EIS process is long with opportunities for public comments. The goal of an EIS is to force the agency to consider the impacts of the project or action in the agency’s decision making process. If the agency decides to move forward with the action or project it must publish a Record of Decision (ROD) documenting what it considered and any changes to the project.
What are the proposed changes to NEPA?
- Limit which projects are covered by NEPA- The proposed rule redefines what is considered a “major federal action” triggering the NEPA process. Only those actions are subject to “federal control or and responsibility” are covered by NEPA. If the action or project is nondiscretionary, limited federal funding or limited federal control, NEPA will not be triggered. As an example, if a project receives funding for design, but local or private funding will pay for the project, NEPA would not be triggered.
- Only direct environmental effects must be considered (i.e. not cumulative impacts like climate change)- the proposed rule eliminates consideration of indirect or cumulative impacts. Impacts that are considered remote in time or geographically remote do not need to be considered.
- Speed up the review process- the proposed changes seek to limit Environmental Assessments to one year and Environmental Impact Statements to no longer than two years (unless senior management approves a longer time period). The proposed rulemaking notes that the average time to complete an EIS and ROD is 4.5 years.
- Reasonable alternatives- the proposed rule defines which alternatives must be considered as “reasonable alternatives” as those that are technically and economically feasible, meet the purpose and need for the proposed action and the goal of the applicant.
There are numerous other major proposed changes. All of the changes are designed to limit which projects trigger a review, reduce the time period to complete reviews and limit what impacts must be considered.
The rule was proposed on January 10, 2020. Comments must be submitted by March 10.