NEPA as Amended by the Fiscal Responsibility Act of 2023

By David Brewster, UES Senior Environmental Manager

A collective sigh of relief was felt from the entire country when Congress raised the debt ceiling on Wednesday, May 31. What received less attention were the significant amendments to the National Environmental Policy Act of 1969 (NEPA) attached to the bill, known as the Fiscal Responsibility Act of 2023. The last substantial changes to the NEPA were enacted in 1982. The amendments went into effect and became law with the final stroke of the President’s signature on June 3, 2023.

What are the Changes?
Some of the more significant and interesting changes include reducing the time to complete an environmental review through several processes. These include:

• Reducing the overall time of the environmental review process by imposing a two-year limit on an Environmental Impact Study (EIS); the historical average is 4.5 years.
• Using a programmatic environmental document to cover a wide range of similar project types.
• Adopting Categorical Exclusions from other agencies.
• Adding page limits for environmental documents.
• Allowing the right to petition the court if the time limit is exceeded.

What does this mean for development projects, environmental consultants, and regulators?
The amendments will likely impact larger, more complex projects, like the EIS, rather than less complex, better-understood projects like an Environmental Assessment (EA). Environmental consultants and regulators will need to recalibrate their approach to these projects; the clock will now take precedence. The scope will now be dictated by what level of analysis can be performed within this time frame. Clients, consultants, and regulators will be tied closer together to review the project components and reach a consensus on the level of effort and expectations.

More Information for the Detail-oriented
The Act expanded from seven pages to 12 pages as written. Congressional Declarations under Title I were expanded from five sections to 11 sections. Some of the amendments were a codification of procedures and definitions adopted at the agency level and are now streamlined across all agencies to ensure that we are all speaking the same language and have the same understanding of roles and responsibilities.

Time Limits
Imposing a time limit sharpens the focus for all of us but risks greater environmental harm. Time limits also present a risk for the client if new information is discovered after the fact that may need to be addressed (e.g., via permit) after significant decisions and finances have been made. While one may think that a shortened review time will lower the cost of an EIS, this may not be the case, as more resources may be needed to analyze and assess impacts in a compressed time frame. As always, project costs must be considered on a case-by-case basis.

Programmatic Documents
Using programmatic documents for similar projects with similar impacts has proven successful with various agencies. This practice saves time, taxpayer money, and resources that may be limited. We see this as a codification of a practice that has been used for some time and will not likely change the review time frames for agencies currently using this process. Instead, this will assist other agencies who adopt this process to reduce the review time of some projects naturally.

Categorial Exclusions
Using common categorical exclusions (CEs) between agencies is a welcomed change. Why should an exclusion apply to one agency but not be available to another? Well, one reason may be that the CE doesn’t fit the project. Fortunately, the amendment was written with safeguards in place. Agencies cannot arbitrarily choose exclusions as if ordering off a menu. The agency considering using another’s CE must consult with that agency to ensure the CE is appropriate for their project. The proposed-for-adoption CE must then be identified to the public as adopted from another agency for the current project. The adoption of the CE must also be documented in the project records.

Page Limits
Page limits have been somewhat of a contentious issue in that some believe a limit does not allow for an adequate analysis of complex projects. This is a valid argument, and fear not, there is an exception for EISs with “extraordinary complexity” (300 pages). For the less complicated EISs, a page limit (150 pages) allows us to keep our words concise and perhaps keep them as simple and basic, to the extent practicable, so that a non-scientific reviewer can understand the analyses and implications of the impacts. Environmental assessments clock in at 75 pages. Appendices and supporting documentation are not included in the page limits.

What if the Agency Misses Their Deadline?
This new rule allows the project sponsor to obtain a review of the “alleged” failure of the agency to meet its deadline. If the court rules that the agency failed to act by the applicable deadline, the court will set a schedule and deadline not to exceed 90 days. The agency must report any project that exceeds the two-year deadline to Congress annually to explain the failure to meet the deadline, the timing of certain critical actions, and when the EA or EIS is expected to be completed.

Other Amendments

• Codifying the structure and cooperation between multiple participating federal agencies.
• One document. For proposed actions by multiple federal agencies, the lead and cooperating agencies will evaluate the proposed action in a single document to the extent practicable.
• E-NEPA. The Council on Environmental Quality (CEQ) was allocated $500M to study online and digital technology potential to address delays in review and improve public accessibility and transparency. The report is due to Congress in one year and could change how we “see” and “do” NEPA reporting.
• Codifying level of review and definitions.
• Ensuring professional and scientific integrity of the analyses and documents.
• Study, develop, and describe technically and economically feasible

Bottom Line
The amendments were designed to significantly reduce the environmental review time by streamlining the process, improving public access, and adding transparency to the NEPA process. The client, consultant, and regulator must work closely and stay focused to meet the new regulations. Many other nuances within the Act deserve more attention. Watch this space for further insights and updates.

David has over 20 years of experience as a Project Manager and Multi-Media Permitting Specialist on various energy development/facility siting projects for private and federal clients throughout the United States.