Several federal agencies have recently announced the reviews of their procedures under the Law of National Environmental Policy, which officials will say that they will rationalize projects for the benefit of contractors, although environmental defenders say that reviews will be less open to public participation and that they can overlook the impacts of projects.
The changes reflect the modifications made by Congress in 2023, an executive order of President Donald Trump at the beginning of the year that directed officials to review the existing regulations and practices and “suspend, review or terminate all the actions of the agency identified as improperly”, as well as an announcement by the Board of the White House on Environmental Quality (CEQ) that would terminate their regulations related to the Nepa. They also arrive at the recent Supreme Court ruling, which limited the scope of NEPA reviews to environmental impacts directly linked to the project at its location and not indirect impacts elsewhere. The case treated a proposal to build a railway in Utah to transport the crude oil, which opponents said that they would have adverse effects near refineries in Louisiana and Texas.
Through a combination of manuals of staff, guidance and decisions, agencies that include the Department of Transport, Department of Energy, Department of the Interior, Department of Defense, the Federal Commission on Energy Regulation (FERC), the Corps of Engineers of the United States Army, Dept. From agriculture and the Department of Commerce updated their procedures as CEQ rescdged their regulations, which led the agencies processes.
“These reforms replace the obsolete rules with clear terms, restore the agency authority and put us back on the path to energy rule, job creation and community action,” said Energy Secretary Chris Wright in a statement.
Ann Navaro, a partner specializing in environmental law of the Bracewell LLP firm. From now on, it will be how NEPA procedures evolve in each agency and for different types of projects.
Combined with other recent actions, such as the recent ruling of the Supreme Court and a provision to the Congress Reconciliation Package, which establishes more aggressive deadlines to complete the reviews if the project owners choose and pay a fee, the procedures “could promote agencies to more rationalized reviews,” says Navaro. “But I think in any specific project context, we will have to see how the agencies interpret their post forward.”
The contractors provide for faster deadlines and smaller documents, says Spencer Phillips, a lawyer for regulatory litigation and defense of the General Associated General Contractors of America.
“The most important of the new procedures is a strict adherence to the legal guards, mainly the limits of the page and the time, both of which are in favor,” says Phillips. “You should make the deadlines much faster.”
But after the ads of the agencies of their new procedures, some environmental proponents shared concern for changes to eliminate public participation from reviews and weaken regulators’ ability to consider climate change, environmental justice and other key issues.
“The NEPA, the environmental environment of the people, plays a vital role to ensure that government decisions are transparent, well informed and responsible for the public,” Andre Segura, Vice President of Litigation at Earthjustice, said in a statement. “Collectively, [these] Actions reversed this promise and mainly harm the capacity of the public to participate in federal decision -making processes. “”
However, developers may find that updates do not mean that their projects are quickly combined through all the necessary approvals. Mark Christie, President of Ferc, said in a statement that the Commission would guarantee that its reviews “be legally durable, so that the projects are being proposed in court and they are built.”
Different approaches and common items
The different agencies used different approaches in their new procedures, although they share common elements established by the law itself. But they also vary at points that are not specified by the Statute, such as the scope of public comment on the environmental impact statement project required as part of the review process.
Nepa does not set the time that public comments must remain open. For the FERC, the comment period should “generally” the last 45 days, according to their new staff orientation on the implementation of NEPA. In the National Freeway Safety Administration, transport department procedures say that it must allow 30 days to comment on public documents in most cases. In the meantime, the Department’s Nepa Manual manages that officials should request comments from the federal, state, tribes and local governments, as well as the applicant, and “ can ” request public comments, but officials are not obliged to: with a 30 -day window to obtain comments.
“According to the former CEQ regulations, all agencies had to foresee public comments on an environmental impact declaration project,” says Navaro. “This requirement is not found in the CEQ Statute and the Regulations are now over. Thus, in these new procedures, most agencies have made this public opportunity discretionary with agencies to decide in any particular situation.”
Another common element in the different agencies is the inclusion of page limits for environmental evaluations and environmental impact statements. The 2023 amendments to Nepa stipulated that the EA generally should not exceed 75 pages and that EISS should exceed 150 pages or 300 pages in cases of “extraordinary complexity”, without including appendages. Reviews have often exceeded these limits. During Trump’s First Administration, a CEQ report found that Eis Final was published between 2013 and 2018 it had an average of 661 pages, and its appendages promised 1,042 more pages.
In addition to taking less time to prepare, Phillips claims that smaller documents can also mean that reviews are best posed in legal challenges.
“The greater the document, the greater the evidence record, the slower it is,” he says. “The court gives the parties more time to comb -through everything.”
Updated procedures contain other elements that will help accelerate reviews, according to Phillips. They ask for a greater collaboration between agencies, states and tribes to prevent duplicative reviews of the same project. In addition, agencies will now share categorical exclusions, which should benefit contractors by allowing the applications for more projects to be moved through an accelerated review process, he adds.
Engineering body procedures
The United States Army Engineers Corps is unique among the agencies that update their NEPA procedures because officials say they will follow two sets of guidelines. For most civil works, the body will follow the general procedures of the Department of Defense. However, the body also published its own procedures to use them when reviewing the applications under Clean Water’s law and the Harbors Rivers’s Law and for its own water resource development projects.
The updates will “reform, modernize and streamline the environmental reviews of the Corps of Engineers, eliminating unnecessary delays and will help to guarantee the growth of safe and reliable infrastructure projects throughout the country,” said Lee Forsgren, an army assistant secretary for civil works, in a statement.
