President Biden has signed into law the results of debt ceiling negotiations between the White House and House Republicans. Among other things, the bipartisan law includes a series of substantive amendments to the National Environmental Policy Act (NEPA), intended to streamline federal environmental review and permitting. Highlights include:
- A new statutory section codifying standards by which the lead agency is to make a “threshold determination” of NEPA’s applicability;
- Provisions designed to clarify a project proponent’s ability to directly prepare NEPA documents – including Environmental Impact Statements (EISs) – subject to the lead agency’s independent review;
- A series of “feasibility” and “reasonableness” modifiers to NEPA’s broad EIS requirements, most of which serve to codify case law from the 1979 to 2020 time period;
- Several provisions designed to minimize delays through imposition of time limits, mandatory schedule consultations with project proponents, and judicial review of agency failures to meet schedule commitments;
- Page limits of 150 pages for EISs (unless the action is “extraordinarily complex”) and 75 pages for Environmental Assessments (EAs);
- A clear statement that federal agencies may adopt and rely on categorical exclusions originally promulgated by other federal agencies; and
- Standards designed to add certainty to – and facilitate agency reliance on – programmatic environmental reviews.
It is worth noting that several of these amendments effectively codify proposals (or versions of proposals) originally raised in the context of rulemaking undertaken by the Council on Environmental Quality (CEQ). In addition to the legislative amendments described above, practitioners, project proponents, and other stakeholders should keep a close eye on further developments in CEQ’s ongoing NEPA rulemaking process.