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May 31, 2023
Environmental Reviews and Permitting: Pending Legislation
Overview of the Review Process Under
2023, H.R. 3746, contains provisions related to NEPA and
the National Environmental Policy Act
permitting, including some provisions originally introduced
The National Environmental Policy Act (NEPA, 42 U.S.C.
in other bills. Table 1 compares the provisions of H.R.
§ 4321 et seq.) mandates environmental review of many
3746 to existing law. While proposals related to NEPA
agency actions, including issuing permits. NEPA requires
vary, many would address the following issues:
that federal agencies consider the potential impacts of their
actions that may affect the human environment. If a major
Single document: Existing NEPA regulations set a goal for
federal action could result in significant impacts, NEPA
agencies to develop draft EISs “concurrent with and
requires the preparation of an Environmental Impact
integrated with environmental impact analyses” required by
Statement (EIS) that analyzes effects of the proposed action
other federal laws and executive orders. Some proposals
and alternatives to that action. An agency may prepare an
seek to require more collaboration, including a default
Environmental Assessment (EA) to decide whether to
requirement of a single document that incorporates multiple
prepare an EIS or instead issue a Finding of No Significant
agencies’ analysis and/or permitting decisions for the same
Impact. An agency need not prepare either document if a
project. Some also set page limits on documents.
proposed action is unlikely to have a significant impact and
falls under a categorical exclusion—that is, if the action is a
Time limits: Some proposals seek to impose statutory time
type of activity that an agency has already determined does
limits for environmental reviews, including two years for a
not usually result in a significant impact. Categorical
full EIS and one year for an EA. Others impose a two-year
exclusions apply to the vast majority of agency decisions.
limit for overall permitting decisions. NEPA regulations
contain similar goals, although they allow senior agency
NEPA and Permitting Decisions
officials to extend deadlines as necessary. Some proposals
NEPA reviews often contemplate a wide range of potential
require an agency that misses a deadline to pay a project
impacts early in the decisionmaking process. An agency
sponsor. Others are silent on the consequences.
must include in a draft EIS a list of all federal permits,
licenses, and other authorizations that must be obtained in
Inter-agency collaboration and cooperative federalism:
implementing the proposal. Examples of laws that impose
Many permitting decisions fall outside federal jurisdiction.
such requirements include the Clean Water Act, 33 U.S.C.
States, tribes, and local authorities can play important roles
§ 1251 et seq.; Endangered Species Act, 16 U.S.C. § 1531
in permitting decisions. While some proposals would
et seq.; and National Historic Preservation Act, 54 U.S.C.
preempt existing state authority for specific decisions (e.g.,
§ 300101 et seq.
transmission line siting), others encourage states, tribes, and
local authorities to jointly undertake reviews and permitting
Title 41 of Fixing America’s Surface Transportation Act
decisions with federal agencies.
(FAST-41, 42 U.S.C. §§ 4370m–4370m12) contains
additional permitting coordination requirements for
Community engagement and public comments: Many
“covered projects.” Those projects include federal
environmental reviews require an opportunity for public
infrastructure projects with costs over $200 million likely to
comment during the review process. Some proposals would
require multiple federal permits and/or EISs. FAST-41
extend public comment period times or require a new
establishes two-year completion goals and a unified
community impact assessment. Others would set time limits
schedule for environmental reviews of such projects.
that could affect agencies’ abilities to solicit, consider, and
respond to comments before a final decision.
Requirements, time frames, and processes can vary across
agencies and authorities. Agencies typically promulgate
Judicial review: Typically, the Administrative Procedure
regulations under both NEPA and their specific statutory
Act (APA, 5 U.S.C. § 551 et seq.) governs judicial review
authorities to address review requirements. Applicable
of agency decisions. The applicable statute of limitations
state, tribal, and local requirements may also be included.
provides six years to file a claim. Some proposals would
provide shorter time limits to file a challenge to NEPA
Considerations for the 118th Congress
analysis, would exempt categorical exclusions from suit,
The 118th Congress has seen more than 60 bills referencing
would require a plaintiff to have first raised the matter with
NEPA since January 2023. The Fiscal Responsibility Act of
the agency, and would direct courts to expedite decisions.
https://crsreports.congress.gov
Environmental Reviews and Permitting: Pending Legislation
Table 1. Comparison of Select Permitting Provisions in Existing and Proposed Legislation
Existing Law Under NEPA and
Existing Law for FAST-41
Proposed Provisions in the Fiscal
CEQ Regulations
Covered Projects
Responsibility Act of 2023 (H.R. 3746)
Scope of
Categorical exclusions are specific
Federal Permitting Improvement
An agency would be able to apply another
analysis
to each agency and require a case-
Steering Council determines which
agency’s categorical exclusion. Would
specific decision on applicability. If a
projects are covered. A covered
require an agency to clarify the purpose
proposed action is not categorical y
project application must clarify the
and need for its action and would require
excluded, the agency must consider
purposes and objectives for a
analysis of reasonably foreseeable effects
direct, indirect, and cumulative
proposed project. If it is covered,
and a reasonable range of feasible
effects and alternatives.
the agency’s preferred alternative
alternatives.
may contain more detailed analysis
than other alternatives.
One document
NEPA: agencies should combine
Single EIS must be prepared unless
One document would be required for
environmental documents “to the
separate documents are more
NEPA “to the extent practicable.” Would
ful est extent practicable.” Draft EIS
efficient.
direct CEQ to explore a unified permitting
should be prepared concurrently
portal.
and integrated with other
environmental review laws.
Page and time
EAs are limited by regulation to 75
Lead agency prepares timetable for
EAs would be limited by statute to 75
limits
pages and must be completed in
commonly required reviews and
pages and must be completed in one year.
one year. EIS are limited by
authorizations. Two-year goal for
EIS would be limited by statute to 150
regulation to 150 pages if
overall completion, or longer if
pages if “standard” and 300 pages if
“standard” and 300 pages if complex necessary. A final decision must be
complex and must be completed in two
and must be completed in two
made within 180 days after the
years. Timelines may be extended for
years. A senior official can extend
information necessary to complete
cause. Supplementation of a programmatic
length or timeline as necessary.
the review has been received.
EIS or EA would be required after five
years or new circumstances.
Inter-agency
Federal agencies internally agree on
Designates a facilitating or lead
Criteria would guide which agency serves
collaboration
which is the lead agency. CEQ
agency to coordinate agency
as lead agency designations, with CEQ to
and
resolves disputes. Federal, state,
permitting based on a unified plan
resolve disputes. A lead agency would
cooperative
tribal, and local agencies can
and schedule. Participating agencies
supervise environmental review and
federalism
participate as cooperating agencies
can be federal or nonfederal and
develop a permitting decision schedule.
based on specialized expertise or
coordinate on authorizations under
Nonfederal agency could be a joint lead
jurisdiction by law. Federal agencies
the oversight of a permitting council.
agency. Federal, state, tribal, and local
should cooperate with nonfederal
In consultation with CEQ, Office of
authorities could participate as cooperating
agencies to reduce duplication.
Management and Budget resolves
agencies.
Nonfederal agency can be joint lead
escalated disputes.
agency for EIS.
Community
Comments are invited for notice of
There is a default 45-60-day
A notice of intent to prepare an EIS would
engagement
intent to draft EIS and again for a
comment period for a draft EIS and
include a request for public comment on
and comment
draft EIS. Some agencies also
45 days for other environmental
alternatives, impacts, and information.
period
receive comments on a draft EA.
reviews. Information and project
Agencies respond to comments.
status is posted on permitting
dashboard website.
Judicial review
Not expressly addressed by NEPA.
Two years to file claims challenging
Similar to existing law, with a new
The APA provides for judicial
environmental review for covered
provision for judicial enforcement of
review with an applicable statute of
projects. The claimant must have
review deadlines.
limitations of six years.
already raised issues with the agency.
No review of permitting timetable
changes.
Source: NEPA, 42 U.S.C. § 4321 et seq.; FAST-41, 42 U.S.C. §§ 4370m–4370m12; Fiscal Responsibility Act of 2023, H.R. 3746 (as introduced);
CEQ NEPA Implementing Regulations 40 C.F.R. §§ 1500–1508. Some provisions described here as “existing law” are regulations that are
subject to change by the executive branch or chal enge in the courts.
Note: CEQ = Council on Environmental Quality.
IF12417
Kristen Hite, Legislative Attorney
https://crsreports.congress.gov
Environmental Reviews and Permitting: Pending Legislation
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