Quicker But Less Dirty: The Biden Administration Both Streamlines and Seeks to Expand NEPA Environmental Review

• Published in: The Construction Lawyer Vol. 41; no. 4; pp. 17 - 26
• Main Authors: Lee, Elaine Y, Rutherford, Athena G
• Format: Trade Publication Article
• Language: English
• Published: Chicago American Bar Association 01-01-2022
• Subjects: Biden, Joseph R Jr; Biosphere; Contractors; Damage prevention; Decision making; Economic impact; Environmental impact; Environmental impact statements; Environmental policy; Environmental protection; Environmental quality; Government agencies; Infrastructure; Natural resources; Risk levels; Water quality
• ISSN: 0272-0116

NEPA Origins and Current Framework Under the Nixon Administration, the Environmental Protection Agency (EPA) was charged with protecting the environment, which included authority to monitor the nation's water quality, pollution, and the effects of chemicals upon fish and wildlife.4 This national commitment to the protection of the environment was memorialized by the passage of NEPA in 1969.5 NEPA, commonly referred to as the "look before you leap" law, established a nationwide environmental policy framework for planning and decision-making with respect to federal agencies. NEPA's rules apply to a broad range of federal actions, such as federally funded construction projects, plans to manage and develop federal lands, and federal authorizations of nonfederal activities (such as licenses and permits).6 NEPA's express purpose is [t]o declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.7 NEPA applies to all federal agency actions that have a significant impact on the human environment.8 This includes direct, indirect, and cumulative impacts.9 Additionally, NEPA applies to private actions that require federal permits, including mining projects on federal lands, or pipelines that require federal permits. "11 The level of environmental review per project is designed to be proportional with the level of risk of environmental harm (i.e., the projects with the biggest risk of environmental harm undergo the most rigorous level of review).12 NEPA requires the study of potential environmental and related social and economic impacts of a proposed project, both positive and negative, as well as individual and cumulative impacts.13 The law also requires agencies to consider reasonable alternatives to the proposed project before planning whether or how to proceed.14 Further, NEPA vests communities and the public at large with the right to comment on federal actions; this comment process is designed to encourage informed decision-making. [...]the lead agency publishes in the Federal Register a Notice of Intent (NOI) to prepare an EIS.24 The NOI describes the project contemplated plus the rationale for the action, and it invites public comment upon environmental issues posed by the project.25 Once the lead agency receives public comment, it then prepares a draft EIS analyzing the direct, indirect, and cumulative impacts of both the proposed action and one or more alternative means of achieving the desired outcomes.26 A draft EIS must contrast the impacts that are likely to occur from each posed alternative versus the impacts that would occur from a course of no action (i.e., the "no action alternative").27 Next, the public is invited to comment upon and review the draft EIS.28 The lead agency must review, consider, and respond to the public comment before issuing a final EIS and Record of Decision (ROD).29 Should there be shortcomings identified in a draft or final EIS, the lead agency may amend the EIS or submit a supplemental EIS.30 Notably, the vast majority of federal actions do not require an EIS, as most do not involve significant environmental impacts.