Article By DWGP Summer Associate Emily Hutchins - University of Miami School of Law 2023The National Environmental Policy Act (“NEPA”) has undergone significant changes for the first time in almost four decades through the passage of the Fiscal Responsibility Act (“Act”). NEPA requires the federal government to assess major federal actions that impact the quality of the human environment. It applies to a wide range of projects including infrastructure development, federal land management decisions, and projects requiring permits issued by federal agencies. The reforms aim to streamline the environmental review process for these projects while maintaining core environmental protections. The modifications introduce new procedures and deadlines, offering potential benefits for project applicants involved in NEPA reviews.
The Act implemented several reforms to expedite the NEPA review process. One notable change is the adoption of the One Federal Decision framework, which designates a lead agency to coordinate and set a permitting schedule for NEPA-reviewed projects involving multiple agencies. The legislation also establishes page and time limits for the completion of environmental documents. Environmental Assessments (“EAs”) are now limited to 75 pages and must be published within one year of the agency's determination of their requirement. Environmental Impact Statements (“EISs”) are capped at 150 pages and must be published within two years of determining their necessity. These provisions aim to prevent prolonged review periods and provide project applicants with a clearer process timeline.
Another significant change is the clarification of the definition of "Major Federal Action" under NEPA. Previously, the broad definition allowed agencies considerable discretion in asserting federal jurisdiction. The Act narrows the definition to actions that are determined to be subject to “substantial federal control and responsibility.” This change sets a higher bar for federal actions triggering NEPA review, offering more certainty and potentially reducing the number of projects subject to the review process.
While the Act introduces measures to expedite environmental reviews, it does not address certain issues impacting the permitting process. For example, the legislation does not address the issue of permitting new transmission line projects. Instead, the bill provides the North American Electric Reliability Corporation (“NERC”) and the Federal Energy Regulatory Commission (“FERC”) two and a half years to comply with mandated further study of transmission need. The impact of these changes will become more evident as they are implemented, including as to the duration of the review process for developers and entities seeking federal funding or permitting and licensing approval.
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The text of NEPA can be found here.
The text of the Fiscal Responsibility Act can be found here.
