trump administration proposes comprehensive reforms to nepa process By: dan kennedy, director of environmental & utility operations
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he National Environmental Policy Act (“NEPA”) is a foundational environmental law enacted in 1970 (exactly 50 years ago during the Nixon Era) with a mission to enhance the environment by requiring Federal agencies to evaluate environmental effects of proposed projects prior to construction. Born during a time of increased public concern for the environment in the 1960s, NEPA came to be concurrently with the Clean Air Act and was followed shortly after by the Clean Water Act. Further driving NEPA into existence was the outpouring of local opposition efforts to both the construction of the Interstate Highway System, which often cut through existing communities, and to the aggressive delivery of federally funded housing projects. NEPA predates most state environmental laws, and if there was a Mt. Rushmore for environmental laws, let’s just say NEPA would be on it.
vironmental Assessments (“EA”) for major federal actions significantly affecting the quality of the environment for larger projects. In addition, New Jersey has its own requirements for EA / EISs to comply with Executive Order #215 of 1989 (Kean), regardless of federal participation.
Rulemaking recently initiated by the White House Council on Environmental Quality (“CEQ”) is the first significant revision of the NEPA regulations since the original regulations were promulgated in 1978. According to the new proposal, its revisions would modernize the NEPA regulations and facilitate more efficient, effective, and timely NEPA reviews. The current regulatory construct is accused of being a major drive of project delays. This matters to all UTCA members because projects that trigger NEPA reviews are not put out to bid until their processes (and any litigation) play out. Efforts to streamline and modernize NEPA are long overdue and welcome to the infrastructure construction industry.
President Trump issued Executive Order 13807 (Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure) during his first six months in office. The EO has a clear stated purpose to “ensure that the Federal environmental review and permitting process for infrastructure projects is coordinated, predictable, and transparent” with policy statements that clearly consider the need to safeguard communities and maintain a healthy environment. Nowhere in the EO calls for an elimination of NEPA reviews. The EO focuses on federal agency performance and accountability for performing environmental reviews and making authorization decisions. It requires all federal agencies to set goals related to their role under NEPA, establishes a “One Federal Decision” mechanism to avoid duplicative efforts and a process for enhancements to get through the NEPA process in two years or less. These changes and others are sensible and measured for the operations of the federal government, as most agree with the basic tenet of EO 13807 that, “America needs increased infrastructure investment to strengthen our economy, enhance our competitiveness in world trade, create jobs and increase wages for our workers, and reduce the costs of goods and services for our families.”
NEPA casts a wide net in terms of infrastructure. It has broad applicability to federally funded / sponsored projects, permits for some private activity, federal grants and funding decisions, and rulemaking. This includes most infrastructure projects where the federal government is a funding partner, including critical components of our network of roads, bridges, and tunnels. It also includes interstate energy infrastructure projects given the role of the Federal Energy Regulatory Commission (“FERC”) in approvals. This federal review process rarely works in concert with state and local reviews resulting in a complicated web of oversight even for projects with clear environmental benefits. Under its current regulations, Federal agencies must consider the “environmental impact of major Federal actions significantly affecting the quality of the human environment before taking such actions.” Federal agencies comply with NEPA and its regulations by developing Environmental Impact Statements (“EIS”) or En-
What’s Being Done to Modernize NEPA?
The Pipeline
What Does NEPA Currently Require?
Observers may remember the scuffle between the Kerry-lead US State Department and Environmental Protection Agency (EPA) in relation to the Keystone XL oil pipeline. Or…the classic sibling rivalry between EPA and FERC that came to a head through a strongly worded public letter in 2016 related to indirect climate impacts of the pipelines FERC permits. NEPA’s flaws spilled out for all to see as these federal agencies sparred over control. An embarrassing outcome for the federal government.
This January, CEQ issued a proposal to reform NEPA. This is the next step in meeting the stated purpose of EO 13807. The CEQ proposal purports to simplify regulatory requirements, reflect current technologies and agency practices, and improve the format and readability of the regulations. The proposal sets presumptive time limits to prepare EAs at one year and two years for EISs unless a senior agency official approves in writing a longer time period. In addition, the proposal would limit the page length (not
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