On June 3, 2023, the National Environmental Policy Act (NEPA) of 1970 underwent significant amendments, marking the first substantial changes made to this legislation since its inception. The purpose of these amendments is to streamline the NEPA process by codifying various efforts made over the past six years through Executive Orders, regulations, and guidance in the NEPA Handbook. While the amendments aim to improve efficiency, some key provisions raise questions and are likely to be the subject of future litigation.
This blog article aims to provide a concise summary of the key statutory changes to the NEPA statute that we anticipate will be subject to future litigation. By understanding these changes and their potential legal implications, Scout can help navigate the evolving NEPA landscape, proactively address challenges, and make informed decisions regarding environmental compliance and project development.
1. What’s the difference between the 2023 NEPA statutory changes and the NEPA Code of Federal Regulatory (CFR) changes made in 2020?
The statutory changes made to the NEPA statute refer to amendments to the actual law itself. These changes require an act of Congress to be implemented and impact the fundamental provisions and requirements of NEPA. On the other hand, the CFR regulatory changes pertain to the regulations issued by federal agencies to interpret and implement the NEPA statute. These regulatory changes are based on the authority given to the agencies under the law and provide more specific guidance on how NEPA should be applied in practice.
While both types of changes influence NEPA, statutory changes have a broader and more significant impact as they modify the underlying law, whereas regulatory changes primarily affect how the law is implemented by the agencies.
For more detailed information summarizing the 2020 and subsequent NEPA regulatory changes, check out Scout’s previous blog articles:
- ”New NEPA Regulations? A summary of what you need to know!” January 16, 2020
- ”Top 7 Key Takeaways of the New Final NEPA Regulations” August 4, 2020
- ”More NEPA Regulation Changes? Same as It Ever Was (or if you prefer, Back to the Future” November 5, 2021
- ”Big NEPA Changes: 3 Basic Elements Restored and What it Means” May 3, 2022
2. NEPA’s Statutory Overhaul: Our Perspective on the Changes
These comments reflect only those issues considered to be significantly different from the original NEPA statute. The following primarily address the issues that are expected to generate litigation due to their deviation from the original statute and our commentary.
3. Section 102: Ensuring Compliance with Other Statutory Requirements
The amendments begin in Section 102, known as the action-producing section of NEPA. The new language states “consistent with the provisions of this Act and except where compliance would be inconsistent with other statutory requirements,”; the key modification here is “except where compliance would be inconsistent with other statutory requirements.”
This language is attempting to force agencies to determine if their compliance with NEPA is consistent with all other statutory requirements involved in the proposed action/decision-making process.
Surely here is one of many opportunities for new litigation trying to define exactly what these words mean.
4. Section 102 (C) (i): Defining Reasonably Foreseeable” Environmental Effects
Section 102 (C) (I) now reads “reasonably foreseeable” environmental “effects of the” proposed agency action; this language adds “reasonably foreseeable, eliminates the word “impact” and puts in its place “effects of the…”
Here is the second obvious opportunity for future litigation…what does “reasonably foreseeable” mean.
5. Section 102 (C) (ii): Analyzing Alternatives and Negative Environmental Impacts
Section 102 (C) (ii) adds the words “a reasonable range of” alternatives to the proposed “agency” action, “including an analysis of any negative environmental impacts of not implementing the proposed agency action in the case of a no-action alternative, that are technically and economically feasible, and meet the purpose and need of the proposal.”
This appears to be a double negative, but the intent seems to be to ensure the negative environmental impacts associated with the no-action alternative are fully developed.
6. Section 102 (2) (C) (v): Limiting Resources to Federal Government Commitments
Section 102 (2) (C) (v) adds the word “Federal” before resources. This section deals with irreversible and irretrievable commitments of resources because of the implementation of the proposed action.
The amendment is clearly trying to ensure that those resources are limited to the federal government, thereby limiting the state, Tribal, or private resources that might otherwise be included.
7. Section 106: Determining the Level of Review
Section 106 is a new section titled “Procedure for Determination of Level of Review.”
Section 106 (a) is titled “Threshold Determinations.”
- The four provisions identify when an agency does NOT have to prepare an “environmental document.”
- First is when the action is not a “final agency action,” as defined by chapter 5 of title 5, United States Code.
- Second is when the agency is precluded through use of one of its categorical exclusions or the categorical exclusion of another agency, or another provision of law; or “the preparation of such document would clearly and fundamentally conflict with the requirements of another provision of law;” or finally, “the proposed action is a non-discretionary action with respect to which such agency does not have authority to take environmental factors into consideration in determining whether to take the proposed action.”
- It is unclear what this final language means, but certainly future litigation will be required to determine how any agency applies this provision.
Section 106 (b) is entitled “Levels of Review.”
- This section provides an agency with one of two choices, either writing an Environmental Impact Statement (EIS) or an Environmental Assessment (EA).
- The language of Section 106 (b) (1) provides that “An agency shall issue an environmental impact statement with respect to a proposed agency action requiring an environmental document that has a reasonably foreseeable significant effect on the quality of the human environment.” The term “reasonably foreseeable” is added and will certainly give rise to future litigation in an attempt to define the meaning.
- Section 106 (b) (2) provides that an agency will write an EA when the proposed action does not have a “reasonably foreseeable” significant effect…or if the significance is unknown, and the proposed action is not covered by an agency categorical exclusion (CATEX) or the CATEX of another agency or another provision of law. This section also explains that an EA “shall be a concise public document used by an agency as the basis for a finding of no significant impact (FONSI) or the determination that an EIS is necessary.”
- Section 106 (b) (3) provides that the agency “may make use of any reliable data source;” and “is not required to undertake new scientific or technical research unless the new scientific or technical research is essential to a reasoned choice among alternatives, and the overall costs and time frame of obtaining it are not unreasonable.” This language seems to allow agencies to use existing studies and data for deciding which environmental document to prepare and highlights the importance of not using new studies or engaging in new research if it is expensive and time consuming.
8. Section 107: Managing Lead and Cooperating Agencies
Section 107 basically sets forth how agencies will decide? which agency is the lead agency, and which other entities are cooperating agencies.
Section 107 (a) (3), titled “Cooperating Agency,” states that the lead agency “may” “designate and Federal, State, Tribal or local agency that has jurisdiction by law or special expertise with respect to any environmental impact involved in a proposal to serve as a cooperating agency.”
- This seems to go beyond the power of the federal government with respect to Tribal organizations, which are to be dealt with on the same footing as another government would be granted. The same may also be true of local agencies, which do not report to the lead federal agency.
Section 107 (b), titled “One Document,” requires that where the lead agency determines an environmental document needs to be prepared and where action is required of one or more agencies, the lead and cooperating agencies shall evaluate the proposal in a single environmental document.
Section 107 (e) sets forth the page limit requirements for environmental documents. An EIS will be limited to 150 pages unless the proposed action is “of extraordinarily complex,” in which case the EIS can be up to 300 pages in length, not including citations and/or appendices. An EA shall not exceed 75 pages, not including any citations or appendices.
- This statutory requirement codifies a previous CFR modification dating from the 2021 revisions.
Section 107 (g) is titled “Deadlines” and provides that agencies shall complete the EIS not later than two years after the sooner of, as applicable:
- “the date on which such agency determines that section 102(2)(C) requires the issuance of an EIS;
- the date on which such agency notifies the applicant that the application to establish a right-of-way for such action is complete; and
- the date on which such agency issues a notice of intent (NOI) to prepare the EIS for such action.”
- These requirements are of interest for two reasons: First – “Right-of-way” language appears for the first but not the last time in the new amendment. This must relate to gas or oil pipeline right of way, but it is unclear where this language came from and why it is here. Second – Ultimately, the only logical correct answer is #3, the date the agency issues an NOI. This section is likely to be litigated in the future or clarified by CEQ.
Section 107 (g) (2) is titled “Delay.” This section says that if the lead agency determines it is not able to meet the deadline requirement, that it may extend the deadline, “in consultation with the applicant.”
- One wonders what happens if there is no applicant and the proposed action is an action of the lead agency only: for example, building a new VA hospital?
Section 107 (g) (3) is titled “Petition to Court.” This section allows “a project sponsor” to submit a petition to a “court of competent jurisdiction” to seek an order from said court to set a schedule and deadline for agency action, which shall not exceed 90 days, unless the court determines a longer period is necessary to comply with applicable law.
- This section is ripe for future litigation to answer such questions as what court or courts are “courts of competent jurisdiction?” Can only a project sponsor file suit? When does the court have jurisdiction?
- This is an administrative process that is being reviewed and the general standard is that the process has to be complete before a court can review it. One can seek a court to order completion within 90 days of the court order, but this entire legal process can take months to complete. Can the environmental document be finished during that time, or must pens be put down until the court orders a new deadline?
Section 107 (h) is titled “Report.”
- This section mandates that each lead agency must send to Congress a report that identifies all EAs and EISs that did not meet the completion deadline. The report must also include an explanation “for any failure to meet such deadline.” There are other mandates that must be included in the report, such as who was responsible for the environmental document and when it is expected to be complete. It seems Congressional committees will now be the NEPA timeline watchdogs.
9. Section 108: Programmatic Environmental Documents and Subsequent Analysis
The first sentence says that “when an agency prepares a programmatic environmental document (the definition includes EAs and EISs) for which judicial review was available, the agency may rely on the analysis in a subsequent environmental document” for five years without additional review, unless there are “substantial new circumstances or information about the significance of adverse effects that bear on the analysis.” “After five years, so long as the agency reevaluates the analysis in the programmatic environmental document and any underlying assumption to ensure reliance on the analysis remains valid.” This is not quite a sentence—is something missing?
This language begs the question: What are “substantial new circumstances or information?” It is likely that a future court opinion will tell us the legal meaning.
10. Section 109: Adoption of Categorical Exclusions from Other Agency’s NEPA Procedures
Section 109 allows for one agency to adopt the categorical exclusion listed in another agency’s NEPA procedures by following a process outlined in this section.
11. Section 110: E-NEPA: Study on Online and Digital Technologies to Address Delays
Section 110 is titled E-NEPA. This section mandates that CEQ conduct a study and report to Congress in one year on the potential for online and digital technologies to address delays in NEPA review.
12. Section 111: Definitions and Key Terminology
Section 111 is titled “Definitions” and bears careful attention.
Section 111 (5) “Environmental Document” means an EIS, EA, or a FONSI. No mention of a ROD.
Section 111 (10) “Major Federal Action.” The language in this definition provides that ‘major federal action’ means an action that the agency carrying out such action determines is subject to ‘SUBSTANTIAL’ federal control and responsibility.” This is a change in the definition and should be watched carefully for future clarification and possible litigation.
- The section goes on to identify what is not included as a ‘’major federal action’’ and “a non-federal action.”
- With no or minimal federal funding; or
- With no or minimal federal involvement, where a federal agency cannot control the outcome of the project.
- This language is clearly an attempt to limit the definition of major federal action to minimize the need for preparation of an environmental document.
- Additional items identified as “non-federal action” include:
- “funding assistance solely in the form of generic revenue sharing…”;
- “loans, loan guarantees, or other form of financial assistance…”;
- “business loan guarantees provided by the SBA…”;
- “bringing judicial or administrative civil or criminal enforcement action…”;
- “extraterritorial activities or decisions, which means agency activities or decisions with effects located entirely outside of the jurisdiction of the United States…”;
- “activities or decisions that are non-discretionary and made in accordance with the agency’s statutory authority.”
The extraterritorial language seems to be precluding Executive Order 12114. Time and litigation will determine if this is true or not. I believe the same will be true for which activities and decisions are “non-discretionary.”
Section 111 (11) is titled “Programmatic Environmental Document.” It states: “The term ‘programmatic environmental document’ means an EIS or EA analyzing all or some of the environmental effects of a policy, program, plan, or group of related actions.”
- This definition clarifies that an EA can be a ‘programmatic environmental document.’ It also clarifies what can be covered under this terminology.
13. Final Insights on the NEPA Statutory Changes
The language of the original NEPA statute was litigated for years. This common law gave future NEPA practitioners legal guidance as to the meaning of almost every word of the document. During the past 53 years, NEPA regulations have been promulgated and modified. Every agency of the federal government has their own NEPA regulations that interpret how NEPA compliance is to be accomplished within that agency. CEQ has provided guidance in the publications “40 Most-Asked NEPA Questions” and the recently revised “NEPA Handbook.’’
The new statutory language will require amending the CEQ regulations and most agency NEPA regulations. Clearly, Congress is attempting to speed up the NEPA process and make it less voluminous, more focused on the significant environmental issues and alternatives, and identifying one document that will provide complete environmental coverage for proposed projects and actions.
Today, NEPA litigation focuses on whether, or not, NEPA has legally followed the appropriate administrative process. Future litigation will go back to clarifying the meaning of many words found in the new amendments to NEPA.
In conclusion, the recent amendments to NEPA have significant implications for both the general public and federal agencies, underscoring the importance of staying informed about these changes to navigate the evolving NEPA landscape effectively.
Navigating these complexities can be challenging, which is why having access to experts in NEPA compliance is invaluable. At Scout, we have the expertise and experience to assist you throughout your NEPA process. We stand ready as your Scout experts, providing guidance and support in understanding and adapting to the amended regulations.
Contact us today at firstname.lastname@example.org to receive expert assistance in navigating the latest NEPA changes and ensure compliance with the amended regulations.