Although the main purpose of the Fiscal Responsibility Act of 2023 is to increase the federal debt limit, the legislation also includes important provisions related to permitting reform (see Title III of the Act), specifically, changes in the National Environmental Policy Act (NEPA) itself that effectively solidify many of the changes made by the Trump Administration in the 2020 Council on Environmental Quality (CEQ) NEPA Regulations. This new legislation is significant in that it effectively codifies the 2020 changes and prevents the upcoming Phase 2 revisions to the CEQ Regulations from reversing the 2020 changes.
WHAT YOU NEED TO KNOW
The most relevant changes that affect industry and agencies are:
- Identifies thresholds for determining when preparation of a NEPA document is necessary, as well as data and analysis requirements to support that document. Additionally, the legislation identifies specific direction about what does and does not constitute a “major federal action.”
- Provides allowances for a lead federal agency to adopt other agencies’ categorical exclusions.
- Requires consolidation of the multi-lead agency NEPA projects under a single “lead agency.” It provides direction for next steps if federal agencies are unable to agree on the designation of a lead agency.
- Establishes a 150-page limit for environmental impact statements (300 pages for projects of extraordinary complexity) and a 75-page limit for environmental assessments.
- Allows project applicants to prepare environmental assessments under the supervision of the agency.
- Establishes a 2-year time limit on agency-produced environmental impact statements and a 1-year time limit on environmental assessments. Of particular note, it allows the applicant or other relevant stakeholders to challenge agency noncompliance with these deadlines in court. It also establishes clear guidance for when the NEPA process clock starts, thereby eliminating the risk of agencies delaying issuance of notices of intent or project announcements to delay starting the clock on the time limit.
- Requires the head of the lead agency to submit to the Committee on Natural Resources of the U.S. House of Representatives and the Committee on Environment and Public Works of the U.S. Senate a report on the projects that failed to meet the time limit with corresponding explanations as to why.
- Directs the CEQ to set up an “E-NEPA” electronic portal where the public can easily access and provide input on NEPA processes. This is also meant to allow real-time editing of documents by applicable agencies and use of video, animation, geographic information system (GIS) software, and three-dimensional renderings to support the NEPA analysis.
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