Implications of Recent Federal Law Change for NEPA Project Reviews

Nomad

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Aug 26, 2023
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Recent alterations in federal law, specifically the enactment of the Fiscal Responsibility Act on June 3, have introduced significant changes that are poised to impact the permitting process for projects subject to environmental review under the National Environmental Policy Act (NEPA). One of the key provisions of this new law stipulates that NEPA project reviews must now be confined to a maximum of 300 pages and should be concluded within a strict two-year timeframe. However, these constraints have raised concerns among experts, including James Danly, a member of the US Federal Energy Regulatory Commission, who cautions that such limitations could potentially render projects more susceptible to legal disputes.

The imposition of a page limit has prompted apprehensions that federal agencies might encounter challenges in fully elucidating their decisions, thereby increasing the vulnerability of permits to legal scrutiny. Moreover, the stringent time constraint may compel regulatory bodies to expedite decisions, potentially leading to rushed assessments, particularly in the case of intricate projects.

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The Fiscal Responsibility Act (FRA) appears to have put into law the same page limit requirements that were added to CEQ's NEPA implementing regulations a few years ago. That is, agencies are limited to 75 pages for an Environmental Assessment (EA) and 150 pages for an Environmental Impact Statement (EIS), with up to 300 pages allowed for EISs of extraordinary complexity. I don't necessarily agree with James Danly's position that the page limits will "limit the agency's ability to survive review in the courts" because, as the articles also mentions, the page limits don't apply to appendices. Agencies therefore have plenty of breathing room to add all necessary information to the documents to ensure legal defensibility.

More substantive, I think, are the time limits imposed by the FRA, i.e., EISs must be issued within two years, and EAs within one year (same as the CEQ regs). Interestingly, these deadlines may now be subject to judicial enforcement under the FRA. That is, if an agency is failing to meet one of these deadlines, a court can now step in and set a schedule for the agency to complete the document.
 
The recent Fiscal Responsibility Act's impact on NEPA project reviews, limiting pages and imposing a strict two-year timeframe, is concerning. Experts fear rushed assessments, potentially compromising project decisions and inviting heightened legal disputes.
 
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