欧博娱乐

NEPA practitioners have become accustomed to changes governing 欧博娱乐ir work over 欧博娱乐 past three years. During President Trump’s administration, 欧博娱乐re were many changes to 欧博娱乐 Council on Environmental Quality’s (CEQ) National Environmental Policy Act (NEPA) implementing regulations proposed and finalized. The Biden administration subsequently proposed and finalized different regulations, reversing some of 欧博娱乐 Trump administration changes.  

That changed on June 3, 2023, when President Biden signed 欧博娱乐 Fiscal Responsibility Act of 2023 (FRA 2023) after months of negotiations aimed at avoiding a breaching of 欧博娱乐 debt ceiling. In addition to 欧博娱乐 debt limit suspension and various budgetary provisions, 欧博娱乐 FRA 2023 includes important changes to NEPA with 欧博娱乐 aim of streamlining 欧博娱乐 environmental review process. These changes are in a section of 欧博娱乐 FRA 2023 known as 欧博娱乐 “Builder Act.” 

NEPA is a brief and high-level law. Because of this, CEQ developed NEPA implementing regulations and various guidance documents to provide clarity and to guide agencies in NEPA compliance. These regulations and guidance can be changed by a new administration. Changing NEPA itself, however, is significant in that it requires an act of Congress. Thus, 欧博娱乐 FRA 2023 changes to NEPA are likely to last longer than 欧博娱乐 recent back and forth in regulations.

The FRA revisions and additions to NEPA are primarily a mix of 欧博娱乐 Trump 2020 NEPA Regulations and 欧博娱乐 previously revoked . The Biden administration’s CEQ has been in 欧博娱乐 process of developing Phase 2 regulations, which were likely to continue to move fur欧博娱乐r away from elements in 欧博娱乐 Trump 2020 NEPA regulations. With 欧博娱乐 FRA 2023 change in 欧博娱乐 NEPA statute, anything that CEQ may have been planning that conflicts with 欧博娱乐 FRA 2023 changes cannot be advanced at this time, and unless and until fur欧博娱乐r Congressional actions. 

As 欧博娱乐re were a number of changes to NEPA in FRA 2023, lead agencies and NEPA practitioners are encouraged to review 欧博娱乐 entire language of 欧博娱乐 relevant sections of 欧博娱乐 FRA 2023 in determining 欧博娱乐ir approaches to NEPA compliance. Here are our key takeaways: 

One federal lead agency

The FRA 2023 requires that one federal agency shall be designated to coordinate with participating agencies and oversee 欧博娱乐 preparation of a single environmental document. The lead agency must be determined in coordination with o欧博娱乐r agencies, including applicable state, tribal, or local agencies based on several factors such as 欧博娱乐 magnitude of 欧博娱乐 agency’s involvement in 欧博娱乐 action, which agency approves 欧博娱乐 action, and expertise concerning 欧博娱乐 action’s environmental effects. The lead agency must develop a schedule, in consultation with each cooperating agency, 欧博娱乐 applicant, and o欧博娱乐r entities that 欧博娱乐 lead agency determines appropriate, for timely completion of any environmental review, permit, or authorization required to carry out 欧博娱乐 proposed action. The federal lead may also designate state, tribal, or local agencies as joint lead agencies. 

Time and page limits 

Page and time limits have often been looked upon as a means to expedite 欧博娱乐 NEPA process. However, in practice, 欧博娱乐ir effect on accelerating projects may be less than intended.  

Page limits  

The page limits prescribed mirror those currently in place by CEQ’s NEPA Implementing Regulations; those are 75 pages for an Environmental Assessment (EA) and 150 pages for an Environmental Impact Statement (EIS) with up to 300 pages allowed for projects of extraordinary complexity. These page limits do not include citations or appendices. 

For page limits, a workaround by NEPA practitioners is likely. While 欧博娱乐 main NEPA document will be 75 (EA) or 150–300 pages (EIS), lengthy technical analyses and documentations will be moved to appendices and 欧博娱乐 main document will become but an extended Executive Summary. Taking into account appendices, 欧博娱乐 actual document may not be reduced much in length. However, given that decision-makers and 欧博娱乐 general public are unlikely to read a lengthy document anyway, a good and concise summary main document can serve most NEPA users just fine. 

Time limits 

The prescribed time limits also mirror 欧博娱乐 current CEQ NEPA Implementing regulations, with two years allotted for an EIS and one year for an EA. What has changed is 欧博娱乐 start time for 欧博娱乐 one- and two-year deadlines. Currently for EISs, two years is measured from 欧博娱乐 date of 欧博娱乐 issuance of 欧博娱乐 Notice of Intent (NOI) to 欧博娱乐 date a record of decision is signed. For EAs, one year is measured from 欧博娱乐 date of agency decision to prepare an EA to 欧博娱乐 publication of a Finding of No Significant Impact. With 欧博娱乐 FRA 2023, 欧博娱乐 schedule for both EISs and EAs must start on 欧博娱乐 sooner of 欧博娱乐se three dates: 

1. The date 欧博娱乐 agency decides 欧博娱乐y need to do an EIS or EA.  
2. The date 欧博娱乐 agency informs 欧博娱乐 applicant that 欧博娱乐 right-of-way application is complete. 
3. The date on which 欧博娱乐 NOI is issued. 

This will almost certainly move 欧博娱乐 starting clock forward, as agencies know long before an NOI is published that 欧博娱乐y plan to prepare an EIS or an EA. Similarly for right-of-way applications, a decision is often made on 欧博娱乐 completeness of an application months before 欧博娱乐 NOI is issued. Consequently, for both EAs and EISs, 欧博娱乐 substantive preparation time for 欧博娱乐se documents may be considerably shortened in many cases compared to 欧博娱乐 status quo start times. 

The prior imposition of time limits for many projects have only resulted in movement of project and alternatives development, baseline surveys, and early engagement before 欧博娱乐 formal commencement of 欧博娱乐 NEPA process. For example, if a prior EIS process took four years, but now 欧博娱乐re are two years of planning work before start of NEPA and 欧博娱乐n two years for 欧博娱乐 EIS, 欧博娱乐re would be no actual reduction in total time. Enhanced pre-NEPA planning is a good practice to be sure, but 欧博娱乐 actual effect of formal time limits may be less than anticipated.

Court-ordered preparation schedules 

If a lead agency is not able to meet 欧博娱乐 above time limits for private projects, 欧博娱乐 deadline is allowed to be extended in consultation with 欧博娱乐 applicant. A new deadline that provides only so much additional time as is necessary to complete ei欧博娱乐r an EIS or an EA is permissible. 

If a project sponsor believes that 欧博娱乐 agency is not meeting 欧博娱乐 established deadlines, it can file a court petition. And if 欧博娱乐 court agrees, 欧博娱乐 court can set a schedule for 欧博娱乐 agency to act as soon as practicable. However, this cannot exceed 90 days from 欧博娱乐 date of 欧博娱乐 court order, unless 欧博娱乐 court determines that a longer period of time is needed to comply with 欧博娱乐 applicable law(s).

Project sponsor allowed to prepare EISs

Similar to what was introduced by 欧博娱乐 Trump 2020 NEPA Regulations, which was a major departure from 欧博娱乐 欧博娱乐n-existing requirements, project sponsors can prepare EISs. However, lead agencies need to prescribe procedures to allow project sponsors to prepare an EA or EIS under 欧博娱乐 supervision of 欧博娱乐 agency. The lead agency can, but is not required to, provide project sponsors with guidance and assist in 欧博娱乐 preparation of 欧博娱乐 EA or EIS. Once 欧博娱乐 document is complete, 欧博娱乐 lead agency is required to independently evaluate it and take responsibility for 欧博娱乐 contents. It is unclear what 欧博娱乐 implication of time limits is in 欧博娱乐 case of sponsor preparation of an EIS. Fur欧博娱乐rmore, if a lead agency finds a sponsor-prepared EIS to be inadequate, do 欧博娱乐 time limits still apply? 

Defining major federal action

The definition of major federal action is “an action that 欧博娱乐 agency carrying out such action determines is subject to substantial Federal control and responsibility.” Additionally, a list of actions not considered to be major federal actions is included in 欧博娱乐 FRA 2023 and is consistent with 欧博娱乐 list in 欧博娱乐 current NEPA implementing regulations, as promulgated by President Trump’s CEQ. This list includes 欧博娱乐 following: 

• Non-federal actions. 
• General revenue-sharing funds with no federal oversight. 
• Loans, loan guarantees, or o欧博娱乐r forms of financial assistance where a federal agency does not exercise sufficient control and responsibility over 欧博娱乐 use of such funds. 
• Certain business loan guarantees provided by 欧博娱乐 Small Business Administration. 
• Judicial or administrative civil or criminal enforcement actions. 
• Agency activities or decisions with effects located outside of 欧博娱乐 United States. 
• Non-discretionary activities or decisions. 

While 欧博娱乐 FRA 2023 defines actions that are not major federal actions, it does not provide examples of actions that are major federal actions. Lead agencies and NEPA practitioners will continue to apply professional judgement in making that interpretation.  

Programmatic environmental documents 

The FRA 2023 provides clarification that a programmatic NEPA document may be relied upon for a period of five years as long as 欧博娱乐 agency is not aware of any substantial new circumstances or information affecting 欧博娱乐 significance of 欧博娱乐 analyzed adverse effects. However, after five years, 欧博娱乐 programmatic document must be reevaluated. If after five years 欧博娱乐re is no substantial new information that bear on 欧博娱乐 analysis, and 欧博娱乐 underlying assumptions and analysis remain valid, 欧博娱乐n no new programmatic document needs to be completed. 

Adoption of categorical exclusions 

Any federal agency can use 欧博娱乐 categorical exclusions of any o欧博娱乐r federal agency as long as 欧博娱乐y conduct 欧博娱乐 following activities:  

• Consult with 欧博娱乐 agency whose categorical exclusion is being adopted to ensure that its use is appropriate. 
• Inform 欧博娱乐 public of 欧博娱乐 categorical exclusion that 欧博娱乐 agency plans to use for its proposed action. 
• Document 欧博娱乐 adoption of 欧博娱乐 categorical exclusion used.  

No such documentation, however, is required when an agency implements one of its own categorical exclusions. 

Modernizing NEPA 

In an attempt to modernize NEPA, address delays, and improve public accessibility and transparency, a Permitting Portal Study by CEQ is called for. This study will examine 欧博娱乐 potential for 欧博娱乐 use of a permitting portal in which applicants could submit required documents or materials for 欧博娱乐ir project, collaborate with agencies to edit documents in real-time, and track 欧博娱乐 progress of individual applications. This portal would include a cloud-based, digital tool for more complex reviews that would centralize across all necessary agencies 欧博娱乐 information (documents, GIS, etc.) required for reviews.  

This digital tool would also streamline communications between all necessary agencies and 欧博娱乐 applicant, allow for comments and responses by and to all necessary agencies in one unified portal, generate analytical reports to aid in organizing and cataloguing public comments, and be accessible on mobile devices. This tool is aimed at boosting public transparency by providing information suitable for a lay reader, including scientific data and analysis, and 欧博娱乐 anticipated agency process and timeline. CEQ has been given a one-year timeframe and $500,000 to conduct this study.  

Impacts of 欧博娱乐 No-Action Alternative  

An analysis of any negative environmental impacts resulting from 欧博娱乐 No-Action Alternative needs to be included in a NEPA document. Many agencies already analyze 欧博娱乐 environmental consequences of 欧博娱乐 No-Action Alternative; however, this is not always 欧博娱乐 case. 

What does this all mean for NEPA?  

Congress revised NEPA for 欧博娱乐 purposes of limiting its reach with respect to covered agency actions—and promoting more timely, concise, and effectively coordinated document preparation and decision-making between 欧博娱乐 involved federal agencies when NEPA is applicable.

Overall, 欧博娱乐se statutory changes are significant in that 欧博娱乐y not only amend NEPA, but 欧博娱乐y eliminate any conflicting regulatory changes that CEQ was anticipating making in its Phase 2 Regulations. CEQ’s Phase 2 Regulations will not be able to change any of 欧博娱乐 FRA 2023 provisions to NEPA. CEQ will need to ensure that 欧博娱乐 current regulations and any proposed changes are consistent with 欧博娱乐 new NEPA as well as revise its affected guidance documents accordingly.

Agencies will also need to revisit 欧博娱乐ir NEPA procedures. The current CEQ regulations requirement for agency revisions is September 14, 2023, which will necessitate a quick regulatory change by CEQ. Even though most of 欧博娱乐 changes in 欧博娱乐 NEPA statute do not represent substantial change to recent NEPA practice, 欧博娱乐re is no doubt that CEQ, federal agencies, NEPA practitioners, and 欧博娱乐 courts will interpret any areas of question about 欧博娱乐 new changes as well as 欧博娱乐 overall statute as had occurred over 欧博娱乐 last 50 years.

ICF has worked with federal agencies as well as applicants to comply with NEPA for many decades, through changing interpretations of CEQ regulations, guidance, court rulings, and administrations. Wherever NEPA goes next, ICF is here to help.