Environmental Reviews and the 118th Congress

Environmental Reviews and the 118th Congress

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Updated September 19, 2023
Environmental Reviews and the 118th Congress
Overview of the Review Process Under
NEPA provisions affected by P.L. 118-5. While proposed
the National Environmental Policy Act
environmental review provisions under consideration for
The National Environmental Policy Act (NEPA, 42 U.S.C.
the 118th Congress are too varied to offer a comprehensive
§ 4321 et seq.) mandates environmental review of many
summary, the following matters appear in multiple bills:
agency actions. NEPA requires that federal agencies
consider potential impacts of their actions that may affect
Single document: As amended by P.L. 118-5, NEPA
the human environment. If a major federal action could
requires a single document “to the extent practicable” if
result in significant impacts, NEPA requires the preparation
multiple agencies are involved in an environmental review.
of an Environmental Impact Statement (EIS) that analyzes
Some proposals would require more coordination, such as a
effects of the proposed action and alternatives to that action.
default single document incorporating multiple agencies’
An agency may prepare an Environmental Assessment (EA)
analysis and/or permitting decisions for a given project.
to decide whether to prepare an EIS or instead issue a
Finding of No Significant Impact. An agency need not
Time limits: P.L. 118-5 created judicially reviewable time
prepare either document if a proposed action is unlikely to
limits for environmental reviews, including two years for a
have a significant impact and falls under a categorical
full EIS and one year for an EA. Some bills would impose
exclusion—a type of activity that an agency has already
other time limits such as allowing two years for overall
determined does not usually result in a significant impact—
permitting decisions or requiring agencies that miss a
or one that Congress has excluded by statute. Categorical
deadline to pay a project sponsor.
exclusions apply to the vast majority of agency decisions.
Agencies typically issue regulations and guidance under
Inter-agency collaboration and cooperative federalism:
both NEPA and their specific statutory authorities to
Many permitting decisions involve states, tribes, or local
address environmental review requirements.
authorities. While some proposals would preempt existing
state authority for specific decisions (e.g., transmission line
NEPA and Permitting Decisions
siting), others encourage states, tribes, and local authorities
to jointly undertake reviews and permitting decisions with
NEPA reviews often contemplate a wide range of potential
federal agencies. P.L. 118-5 expressly authorizes state,
impacts early in the decisionmaking process. A draft EIS,
tribal, or local agencies to serve as joint lead agencies for
for example, must include a list of all federal permits,
coordinating on environmental documents and permitting
licenses, and other authorizations (generally described here
as “permitting decisions”)
review schedules.
that must be obtained to
implement the proposal. Examples of laws that impose such
Community engagement and public comments: Many
requirements are the Clean Water Act, Endangered Species
environmental reviews require an opportunity for public
Act, and National Historic Preservation Act.
comment. Some proposals would extend public comment
periods or require a new community impact assessment.
Several laws address agency coordination of environmental
Others would set time limits that could affect agencies’
reviews and permitting, although requirements, time
abilities to solicit, consider, and respond to comments
frames, and processes can vary across agencies and
before a final decision.
authorities. NEPA itself establishes lead agencies, while
Title 41 of Fixing America’s Surface Transportation Act
Judicial review: Typically, the Administrative Procedure
(FAST-41) contains permitting coordination requirements
Act (APA, 5 U.S.C. § 551 et seq.) governs judicial review
for “covered projects.” Those projects include federal
of agency decisions. The applicable statute of limitations
infrastructure projects with costs over $200 million likely to
provides six years to file a claim. Some proposals would
require multiple federal permits and/or EISs. FAST-41
provide shorter time limits to file a challenge to NEPA
establishes two-year completion goals and a unified
analysis, would exempt decisions from suit if they rely on
schedule for environmental reviews of such projects.
categorical exclusions, would require a plaintiff to have
NEPA in the 118th Congress
first raised the matter with the agency, and would direct
courts to expedite decisions. P.L.118-5 also added a right of
The 118th Congress has seen more than 100 bills
review under NEPA itself for a project sponsor to enforce
referencing NEPA since January 2023. Among these is the
an EA or EIS deadline.
Fiscal Responsibility Act of 2023 (P.L. 118-5), which
amended NEPA. Table 1 provides a summary of select
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Environmental Reviews and the 118th Congress
Table 1. Summary of Select National Environmental Policy Act (NEPA) Requirements
Council on Environmental

NEPA as originally enacted
Quality (CEQ) regulations
P.L. 118–5 amendments to NEPA
Scope of
For a “major Federal action
Agencies must consider direct,
Agencies must clarify the purpose and need
analysis
significantly affecting the quality of
indirect, and cumulative effects and
for an action. For a “major Federal action”
the human environment” (not
alternatives.
(new definition) significantly affecting the
defined), agencies must prepare a
Major federal action is defined.
quality of the human environment, agencies
detailed statement on impacts,
must prepare a detailed statement on
unavoidable adverse effects, and
More details are established on
reasonably foreseeable effects and a
alternatives to a proposed action.
standard federal requirements for
reasonable range of feasible alternatives.
Environmental Assessment (EA)
preparing an EA or Environmental
More EIS and EA requirements are detailed
requirements are not detailed in
Impact Statement (EIS).
in statute.
statute.
Categorical
Not addressed in original statute.
Agency-specific categorical
No environmental documentation is
exclusions
exclusions require case-specific
required if a decision is subject to an
determinations of applicability.
agency’s categorical exclusion. An agency
may apply another agency’s categorical
exclusion.
One document
Not addressed in original statute.
Agencies are directed to combine
One document is required for NEPA “to
environmental documents “to the
the extent practicable.” CEQ is directed to
ful est extent practicable.”
pilot “E-NEPA,” a unified permitting portal.
Page and time
Not addressed in original statute.
EAs must be completed in one year
EAs must be completed in one year and
limits
and are limited to 75 pages. EISs
are limited to 75 pages. EISs must be
must be completed in two years and
completed in two years and are limited to
are limited to 150 pages if
150 pages if “standard” and 300 pages if
“standard” and 300 pages if complex. complex. Timelines may be extended for
A senior official can extend length or cause. Supplementation of a programmatic
timeline as necessary.
EIS or EA is required after five years or if
new circumstances arise.
Inter-agency
An agency preparing an EIS must
Federal agencies internally agree on
New criteria guide which agency serves as
collaboration
consult with and obtain the
which is the lead agency. CEQ
lead agency designations, and CEQ resolves
and
comments of any federal agency
resolves disputes. Federal, state,
disputes. Lead agencies supervise
cooperative
that has special expertise or
tribal, and local agencies can
environmental reviews and develop
federalism
jurisdiction by law. In some cases,
participate as cooperating agencies
permitting decision schedules. A nonfederal
consultation extends to state
based on specialized expertise or
agency can serve as a joint lead agency.
agencies. Under certain conditions,
jurisdiction by law. Federal agencies
Federal, state, tribal, and local authorities
a federal agency may use analysis
cooperate with nonfederal agencies
may participate as cooperating agencies.
prepared at the state level.
to reduce duplication. Nonfederal
agency can be a joint lead agency.
Community
Agencies must share advice and
Comments are invited for a notice
A notice of intent to prepare an EIS must
engagement
information. Inter-agency
of intent to draft an EIS and again for include a request for public comment on
and comment
consultation and comments must be a draft EIS. Some agencies also
alternatives, impacts, and information.
period
available to the public in accordance
receive comments on a draft EA.
with 5 U.S.C. § 552.
Agencies respond to comments.
Judicial review
Not expressly addressed by NEPA.
Regulations express CEQ’s intention
NEPA contains an explicit judicial review
The Administrative Procedure Act
that judicial review of agency
provision allowing for judicial enforcement
(APA) provides for judicial review
compliance with NEPA regulations
of deadlines to complete an EA or EIS.
with an applicable statute of
not occur before an action is final.
Judicial review remains available under the
limitations of six years.
APA for other matters.
Source: NEPA, 42 U.S.C. § 4321 et seq.; FAST-41, 42 U.S.C. §§ 4370m–4370m12; Fiscal Responsibility Act of 2023, P.L. 118-5; CEQ NEPA
implementing regulations, 40 C.F.R. §§ 1500–1508. CEQ and agency-specific NEPA regulations are subject to change by the executive branch
and are general y reviewable in the courts under the APA.

IF12417
Kristen Hite, Legislative Attorney

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Environmental Reviews and the 118th Congress

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