Legislative and executive branch change in NEPA process | Jedi Supra

[co-author: Edward Mahaffey]

Processes related to the National Environmental Policy Act (NEPA), especially the Environmental Impact Statements (EISs), are changing.[1] On the one hand, the executive branch under the Biden administration, including the Environmental Quality Council (CEQ)[2] Taking into account the effects of climate change, the NEPA is working to provide a comprehensive response to the NEPA process. On the other hand, the Bilateral Congress Infrastructure Bill will have a negative impact on weakening Nepal’s environmental objectives in the process to speed up the review of projects by the federal government.

EIS deadlines

EISs are very deep and time consuming to prepare, as they are partly concerned about the challenges the courts face under the Administrative Procedure Code. Not surprisingly, the process can take a long time. A study by CEQ found that the average length of EIS between 2013 and 2018 was 447 pages.[3] According to the National Association of Environmentalists (NAEP), the average final EIS published in 2018 took 1.7 years to prepare a draft EIS and 3.3 years to prepare a draft EIS.[4]

NAEP However, such delays are caused by the need for research: “1) limited agency staff for evaluations, 2) limited project funding and 3) limited staff or manager training.”[5] Moreover, a relatively small number of government actions require a full EIS;[6] CEQ It was observed in 2013 that “using the NEPA process in the Federal Highway Administration – the category that resulted in more than 95% of reviews was exclusion, not EIS.”[7]

Past executive orders and regulations

During the Trump administration, CEQ cited delays as a reason for several major changes in the NEPA process. These regulatory changes are specifically designed to speed up the EES process, starting with the “Federal Decision” Executive Order 13807 “Establishing Discipline and Accountability in Environmental Assessment and Licensing Projects Licensing Process”. Under this framework, no matter how many federal agencies have authority over a particular project, only one EIS will be developed for a project by a designated management agency. Also, the completion of the EIS will be limited to two years if possible.[8] Moreover, the new approach limits the range of environmental impacts that should be considered in general, including eliminating the definition of “cumulative influences.”[9] Therefore, consider the proposed action by combining environmental influences with the results of other related actions or actions. It also forces agencies to “aim and demand” the proposed action “against the goals of the applicant and the agency authority”.[10] These changes to the NEPA Enforcement Regulations were announced on CEQ on July 16, 2020.

A.D. Immediately after becoming President on January 20, 2021, Joe Biden issued Executive Order 13990, which, among other things, repealed Executive Order 13807.[11] Although CEQ regulations (2020 NEPA Regulations) remain technically valid, their enforcement deadline has been extended by two years.[12]

Planned changes

A.D. The August 10 Senate Bilateral Infrastructure Draft contains provisions designed to expedite the NEPA review process. The provisions are the same as those approved by the repealed Trump Executive Order.[13] The bill generally requires a common EIS rather than multiple for each engineering project; Years.[14] Some types of projects, including some “assembly lines” at the Federal Land Service oil and gas wells, are also eligible for category exclusions.[15]

Some commentators said the current NEPA regulations “are often costly for the causes of death, high delays, and projects that are most needed for projects, and are environmentally friendly.” Such as high density housing or public transportation.[16] Most environmental groups who have commented on the regulations have rejected this view. Instead, they have found, for example, that free assembly lines are unlikely to be positive for the environment. In addition, organizations such as the Natural Resource Conservation Council (NRDC) have criticized the draft’s provisions for speeding up the NEPAN process and harming the environment. For example, the NRDC assesses that the provisions undermine NEPA’s core image. By allowing agencies to focus on the chosen option, the bill undermines the principle, for example, that the Federal Energy Regulatory Commission should consider energy-saving or renewable energy options in addition to the proposed new natural gas interstate pipeline. “In addition, the provisions designed to encourage a two-year deadline for the completion of the NEPA process would transfer excess power over the NEPA process, particularly from environmental knowledge agencies, to the Office of Management and Budget.[17] Executive branch arm.

While negotiations are underway, it remains to be seen whether NEPA provisions will become law. However, members of Congress who oppose the provisions of the Environmental Protection Act may eventually vote in favor of the draft version as part of an agreement to ratify the Environmental Protection Act.[18]

Advances in Federal Agencies

In addition to executive orders, individual agencies began considering changes to their own NEPA regulations after the change of management. For example, the Federal Energy Regulatory Commission (FERC) is re-evaluating the implementation of the NEPA and Natural Gas Law (NGA) in the pipeline approval process. FERC has begun a thorough investigation of the pipeline’s climate change and environmental impacts, in part because the DC District Court of Appeals is considering reversing the Trump administration’s decision to revoke the agency’s pipeline licenses, as well as amendments related to 1999. Gas Pipeline Guide.[19]

CEQ plans

Overall, more dramatic changes are affecting the executive branch at CEQ. First, CEQ announced on October 7, 2021 a new proposed regulation, which proposed to partially repeal the 2020 NEPA regulation. For example, the proposed law restores a broader concept, including the “concept and purpose” of planned actions, as well as a broader concept of environmental influences, including the restoration of the effects of aggregation. The proposed regulation allows agencies to pursue their own NEPA enforcement procedures that exceed the CEQ requirements of the 2020 NEPA law. The review period on the proposed regulations ends November 22, 2021.[20] On the other hand, the proposed regulation does not eliminate the two-year deadline for completing IIS, and the new regulation has been criticized for straining with the goal of encouraging federal agencies to consider alternative measures.[21]

In addition, readers should be alert to further regulatory changes planned for the next round of CEC, focusing on the NEPA review process on climate change and environmental justice.[22]

[1] Under NEPA and its regulations, the EIS generally requires significant environmental impact for federal measures. 40 CFR § 1501.

[2] CEQ is the White House arm responsible for coordinating environmental policy around the federal government.

[3] https://ceq.doe.gov/docs/nepa-practice/CEQ_EIS_Length_Report_2020-6-12.pdf.

[4] https://naep.memberclicks.net/assets/documents/2019/NEPA_Annual_Report_2018.pdf, 10.

[5] ID, 32

[6] As noted, EIS is only required for planned activities that have a significant environmental impact. A less severe environmental assessment (EA) is commonly used to determine the need for a full EIS. In addition, if the proposed action determines that the agency does not have significant environmental impact, a category exclusion may apply if it does not even require EA.

[7] ID, 35

[8] 82 FR 40463.

[9] In the previous edition of the rules, the definition of “aggregate influences” is defined as: (Or non-federal) or a person who performs other such actions. 40 CFR 1508.7 (1978).

[10] 85 FR 43304; 40 CFR 1500-1518.

[11] 86 FR 7042.

[12] 86 FR 34154.

[13] https://www.reuters.com/legal/litigation/us-infrastructure-deal-threatens-undercut-key-environmental-law-2021-09-29/.

[14] https://www.congress.gov/bill/117th-congress/house-bill/3684/text, §11311-11319 and 70801.

[15] https://www.congress.gov/bill/117th-congress/house-bill/3684/text, መስመር11318 Collection projects are pipelines for transporting natural gas or oil from production sites to meeting points.

[16] https://www.michigandaily.com/columns/congress-is-weakening-the-national-environmental-policy-act-thats-good-for-the-environment/.

[17] https://www.nrdc.org/experts/sharon-buccino/infrastructure-done-right-voice-those- Damaged.

[18] https://www.reuters.com/legal/litigation/us-infrastructure-deal-threatens-undercut-key-environmental-law-2021-09-29/.

[19] https://www.politico.com/news/2021/09/29/democratic-ferc-commissioners-pipeling-approvals-514719.

[20] 86 FR 55757.

[21] https://www.law360.com/compliance/articles/1428890.

[22] https://www.eenews.net/articles/white-house-outlines-plan-to-overhaul-trump-nepa-rules/.

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