2023 NEPA Update: We’re Still Fighting

It’s shaping up to be another big year for the future of the National Environmental Policy Act (NEPA), the nation’s foundational environmental law.

Photo Credit: Adam Clark (@acpictures)

March 7, 2023

The Background

In 2020, the Trump Administration re-interpreted this longstanding law with new implementing regulations that undermined the environmental protections it provides. Rewriting those regulations and restoring NEPA has been a top priority for the Biden Administration since day one.

In April 2022, the Council on Environmental Quality (CEQ) published a Phase One NEPA Rule, which restored key components of the government’s responsibilities under NEPA (such as requiring government agencies to consider the direct, indirect, and cumulative effects of a proposed project and providing for meaningful public comment opportunities – more information here).

Now in March 2023, we are expecting CEQ to publish its Phase Two NEPA Rule soon (the draft rule is currently under pre-publication review). The Phase Two Rule will complete the Biden Administration’s work to restore NEPA and is expected to address climate change, environmental justice objectives, and provide regulatory certainty to stakeholders.

The Context and the Impact

Providing regulatory certainty to stakeholders is a hot topic right now, as permitting – specifically for projects related to energy development and infrastructure – is of keen interest to both parties on Capitol Hill.

Last year’s Inflation Reduction Act set the nation on a path to transition to a clean energy economy. This transition will require developing new mineral resources and permitting renewable energy projects. While it’s important that these projects happen quickly in the face of climate change, it’s also important that these projects are thoughtfully designed and don’t result in unintended negative consequences for frontline communities, the environment, or the climate.

Thoughtful, transparent government decision-making is what NEPA is all about. Unfortunately, this important process is plagued by a persistent, false, myth that NEPA causes permitting delays. These claims have been thoroughly debunked by numerous studies, including by the Congressional Research Service, the Government Accountability Office, the U.S. Department of Treasury, and academics. Nonpartisan researchers have repeatedly concluded that NEPA reviews are not a major cause of delay in permitting or project development. Rather, these delays are usually due to factors such as lack of project funding, changes in project design, and other things that are not related to NEPA. Unfortunately, these facts rarely sway politician’s beliefs and some members of House of Representatives have proposed a slew of bills to gut NEPA, in the name of “permitting reform”.

If this sounds familiar, it’s because it is. Last year, our Alliance helped us beat back bad “permitting reform” legislation in the Senate. What the House is cooking this year is worse.

On Deck: The BUILDER Act and Why We Don’t Like It

On February 28, 2023, the House Natural Resources Committee held a hearing on the Building United States Infrastructure through Limited Delays and Efficient Reviews (BUILDER) Act of 2023, which seeks to amend NEPA to prioritize project approval above informed decision making and put private profits above the public interest. This bill is a bundle of trouble.

Among the most concerning aspects of the BUILDER Act are provisions that:

  • Limit the Scope of NEPA Reviews – The bill would radically limit the application of NEPA by redefining the threshold consideration of what is a “major federal action” for the purposes of NEPA.
  • Essentially Eliminate Judicial Review – In addition to reducing the statute of limitations to a mere 120 days (versus 6 years, currently), the bill would bar legal challenges to many NEPA decisions. The bill also limits judicial review to alternatives and effects “considered” in an environmental document, when it is invariably the lack of consideration of reasonable alternatives or important environmental effects in these documents that is the reason for NEPA litigation. For the few remaining projects subject to judicial review, injunctive relief would be prohibited, thus ensuring that projects move forward before a Court has time to rule on the merits of a legal challenge.
  • Allow Inherent Conflicts of Interests – The bill would allow project sponsors to prepare their own environmental reviews, thus eliminating objective analyses.
  • Prioritize Industry Over the Public Interest – The legislation would impose arbitrary timelines on reviews and prohibit an agency from extending the time if needed to do essential scientific work, or to accommodate public comment, unless the project sponsor agrees. The bill would also require agencies to prioritize consideration of alternatives that meet the project sponsor goals.

In the hearing, members of Congress framed this attack on NEPA as necessary for efficiently permitting renewable energy and transmission projects.

While we agree the United States needs to transition to renewable energy and drop our addiction to fossil fuels, we can’t sacrifice frontline communities and long-term environmental health in this process.

NEPA helps to ensure that the public is involved in all levels of the project process, proper environmental studies are performed, and cumulative impacts are considered. Rather than gutting NEPA, Congress should focus on the real causes behind project and permitting delay to solve those problems.

Representative Garret Graves (R-LA), who’s sponsored the BUILDER Act, has admitted it’s unlikely this bill will become law, but according to Politico, he sees it as an “aggressive starting point” for negotiations with Senate Democrats. As last year’s greatest threat to NEPA came by way of a bill sponsored by Democratic Senator Joe Manchin, we anticipate that threats to NEPA will be on the table in the Senate this year as well.

Take Action: Use Your Voice for NEPA

Consider this your heads up that the fight to save NEPA is far from over. Help defend our environment, and your right to have a say in government decisions, by writing to your members of Congress today.

Use the form below to send a letter calling on them to resist any efforts to undermine the National Environmental Policy Act. We’ve included a template to customize your message and share with your representatives.