The National Environmental Policy Act: Streamlining NEPA

Congressional research reportDec 6, 2007

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Prepared for Members and Committees of Congress

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In recent years, the time needed to comply with various environmental laws has been the subject

of public scrutiny and debate in Congress. As a result, numerous administrative and legislative

efforts (both proposed and enacted) have intended to expedite or streamline the environmental

compliance process. Although methods to do so vary, streamlining measures are often proposed

or implemented when the participation of multiple local, state, tribal, or federal agencies is

necessary to comply with various environmental requirements. Streamlining measures may be

applied to various environmental compliance processes, such as federal permitting or approvals.

A major focus of streamlining efforts has been the National Environmental Policy Act of 1969

(NEPA; 42 U.S.C. §§ 4321, et seq.), the implementation of which is overseen by the Council on

Environmental Quality (CEQ). Among other provisions, NEPA requires federal agencies to

analyze environmental impacts and involve the public before proceeding with any major federal

action significantly affecting the human environment.

Many agencies have implemented administrative and legislative streamlining actions, including

the Department of Agriculture (USDA), Department of Transportation (DOT), Department of the

Interior (DOI), Army Corps of Engineers (the Corps), Department of Energy (DOE), and Federal

Energy Regulatory Commission (FERC). Streamlining efforts vary from agency to agency but

usually involve one or more of the following elements: designating a specific agency as the lead

agency responsible for ensuring compliance with applicable requirements, directing the lead

agency to develop a coordinated environmental review process, specifying certain lead agency

authority (e.g., to establish project deadlines or develop dispute resolution procedures), codifying

existing regulations, delegating specific federal authority to states, designating specific activities

as being categorically excluded or exempt from certain elements of NEPA, and establishing limits

on judicial review.

Streamlining proposals have generated a great deal of controversy. Proponents of such measures

argue that streamlining efforts are needed to cut through the “bureaucratic red tape” often

associated with federal project delivery. Others counter that such actions are an attempt to weaken

environmental protection and lessen public participation in federal decision-making processes.

This report discusses elements of NEPA relevant to streamlining, issues associated with

determining project delays attributed to NEPA, common streamlining methods, and recently

enacted legislative and administrative streamlining activities.

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Introduction ..................................................................................................................................... 1

Elements of NEPA Relevant to Streamlining .................................................................................. 3

Background ............................................................................................................................... 3

The NEPA Process .................................................................................................................... 4

Levels of NEPA Analysis.................................................................................................... 4

Determining When an EIS Is Required............................................................................... 5

Elements of an EIS.............................................................................................................. 5

Agency Participation........................................................................................................... 6

NEPA as an “Umbrella” Statute.......................................................................................... 7

Issues in Attributing NEPA Implementation to Project Delays................................................. 7

Determining Delays Related to NEPA Document Preparation ........................................... 7

The Role of Litigation in NEPA’s Implementation ............................................................. 9

Common Streamlining Provisions .......................................................................................... 10

Establishing a Coordinated Compliance Process.............................................................. 10

Codifying Existing Regulations in Law.............................................................................11

Delineating Lead Agency Authority ..................................................................................11

Delegating Authority to States .......................................................................................... 12

Specifying Categorically Excluded or Exempt Projects ................................................... 12

Establishing Limits on Judicial Review............................................................................ 13

Overview of Existing Streamlining Activities............................................................................... 13

Legislation Enacted................................................................................................................. 14

Healthy Forests Restoration Act ....................................................................................... 14

SAFETEA-LU .................................................................................................................. 15

The Energy Policy Act of 2005......................................................................................... 16

Appropriations for the Department of the Interior and Related Agencies ........................ 17

The Water Resources Development Act of 2007 .............................................................. 18

Administrative Actions............................................................................................................ 19

Forest Service Timber-Related Activities ......................................................................... 19

FERC Liquified Natural Gas Facility Operations............................................................. 19

NEPA Task Forces................................................................................................................... 20

CEQ NEPA Task Force ..................................................................................................... 20

Energy Task Force ............................................................................................................ 21

Transportation Task Force................................................................................................. 22

House Resources Committee NEPA Task Force............................................................... 22

Conclusion..................................................................................................................................... 22

For Additional Information............................................................................................................ 23

The U.S. Department of Agriculture ....................................................................................... 23

The Department of Energy...................................................................................................... 24

The Department of the Interior................................................................................................ 24

The Department of Transportation .......................................................................................... 24

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Table A-1. The House Resources Committee NEPA Task Force Recommendations To

Update NEPA ............................................................................................................................. 25

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Appendix. NEPA Task Force Recommendations .......................................................................... 25

Author Contact Information .......................................................................................................... 32

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A multitude of factors can affect the timing of federal project delivery. Factors that may

contribute to delays in a federal project include changes in the planning and design process,

changes in funding priorities, construction complexities, local controversy or community

opposition to a project, and compliance with myriad local, state, tribal or federal laws. With

regard to the latter, certain federal actions such as highway construction projects and permitting

for mining operations, cattle grazing, forest thinning, and energy development projects may

trigger compliance with literally dozens of statutory and regulatory requirements. These, in turn,

may require the participation or input of possibly dozens of local, state, tribal, or federal agencies.

In recent years, the time it takes to comply with various environmental laws has been the subject

of public scrutiny and debate in Congress. One law that has been the subject of particular scrutiny

has been the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. §§ 4321-4347).

Signed into law by President Nixon on January 1, 1970, NEPA declared a national policy to

protect the environment and created a Council on Environmental Quality (CEQ) in the Executive

Office of the President. To implement the national policy, NEPA requires that environmental

factors be considered when federal agencies make decisions and that a detailed statement of

environmental impacts be prepared for all major federal actions significantly affecting the human

environment.

The “detailed statement” referenced in the law is now known as an environmental impact

statement (EIS). CEQ regulations for implementing NEPA, among other provisions, introduced

additional levels of environmental review—those for environmental assessments (EAs) and

categorical exclusions. Generally, EAs are prepared to determine whether the impacts of a federal

action will be “significant” under NEPA. An action is categorically excluded from the

requirement to prepare an EIS or an EA if it is of a type or in a category known to have no

significant environmental impacts. (For more detail on these requirements, see the discussion

regarding “The NEPA Process” in the following section of this report; also see CRS Report

RS20621, Overview of National Environmental Policy Act (NEPA) Requirements, by (name red

acted), and CRS Report RL33152,

The National Environmental Policy Act: Background and

Implementation, by (name redacted).)

The preparation of EISs is probably the best-known requirement of NEPA. However, projects

requiring an EIS represent a small fraction of all federal actions. For example, from 1986 to 2006,

an average of 255 final EISs were filed with EPA each year.1 By comparison, in 1997, CEQ

reported that federal agencies estimated that approximately 50,000 EAs were prepared annually.2

Determining the total number of federal actions subject to NEPA is difficult, as most agencies

track only the number of actions requiring an EIS. One agency that tracks all its projects is the

Department of Transportation’s (DOT) Federal Highway Administration (FHWA). In 2005,

FHWA reported that just over 84% of all highway projects were classified as categorical

exclusions (representing just over 81.5% of FHWA project funding), 9% required an EA (5.5% of

CEQ’s “Number of EISs Filed 1970 to 2006,” available at http://ceq.eh.doe.gov/nepa/nepanet.htm.

Council on Environmental Quality, The National Environmental Policy Act: A Study of Its Effectiveness After Twentyfive Years, January 1997, p. 28, available at http://ceq.eh.doe.gov/nepa/nepanet.htm.

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project funding), and approximately 7% required an EIS (13% of project funding).3 Although

they may be small in number compared with all federal actions, projects requiring an EIS often

include those with the greatest impacts and highest stakeholder interest.

Stakeholders such as state and local project sponsors and industry representatives with an interest

in the implementation of federal actions charge that meeting NEPA’s environmental review

requirements is sometimes done inefficiently and can be overly time-consuming. Such critics

charge that the law creates a complicated array of regulations and logistical delays that stall

agency action.

Environmental organizations look at the NEPA process as an essential tool to help agencies plan

and manage federal actions in a responsible way by requiring policymakers and project sponsors

to consider the environmental implications of their actions before decisions are made. They also

view the NEPA process as an important mechanism to provide the public with an opportunity to

be involved in agency planning efforts. They argue that expediting what is supposed to be a

deliberative process is not necessarily in the best interest of the public or the environment.

Further, they argue that blaming the environmental compliance process for project delays is

misplaced. They contend that if federal projects are, in fact, delayed by the NEPA process, it is

because agencies required to participate in the process are overburdened and insufficiently

funded, staffed, or equipped to meet the demand.

As a result of the debate between stakeholders regarding NEPA’s implementation, numerous

administrative and legislative actions have been proposed to expedite compliance with NEPA.

The activities associated with such proposals are often collectively referred to as streamlining. No

regulatory or legislative definition of streamlining exists. It is defined differently by different

stakeholders or agencies for different classes of projects. However, the term is often used to

describe a process or procedures intended to accelerate decision making, especially when the

input of multiple federal, state, tribal, or local agencies is required to comply with multiple

environmental laws, regulations, or executive orders. For example, FHWA may propose a

highway construction project that affects wetlands that are home to an endangered species. Within

the context of conducting a review of the environmental impacts of the project under NEPA,

FHWA may also be required to demonstrate compliance with elements of the Clean Water Act

and the Endangered Species Act. As a result, the U.S. Environmental Protection Agency (EPA),

the U.S. Army Corps of Engineers, and the Department of the Interior’s Fish and Wildlife Service

would have statutory obligations to participate in the proposed project. These agencies, with

potentially conflicting missions (e.g., protecting endangered species or sensitive wetlands versus

building a highway), are then required to work together to review various aspects of FHWA’s

proposed project. Streamlining efforts may be implemented with the intent of expediting the

requirement of having these agencies work together.

Many of the issues leading to a call for streamlining, as well as challenges to implementing such

actions, are summed up in the following excerpt from a report issued by the National Conference

of State Legislatures:

Regulators often lack guidance on how to successfully integrate the complicated

requirements of state and federal environmental laws and regulations.... Depending on the

complexity of the issue and the priority given the issue by decision makers, decisions can be

FHWA’s Steamlining and Stewardship webpage “FHWA Projects by Class of Action,” available at

http://www.environment.fhwa.dot.gov/strmlng/projectgraphs.asp.

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slow in coming, thus delaying progress. Another barrier is the fact that individual regulators

tend to be experts in only one set of laws and regulations. This tends to create some

resistance to proposals that coordinate or integrate the provisions of different laws.

Regulators tend to be cautious about integrating the requirements of different laws unless

they can define all possible regulatory and technical impacts.4

This statement recognizes that barriers to efficient decision making arise not from NEPA alone,

but from the challenges of integrating compliance with a multitude of laws and regulations that

may apply to a given federal action.

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NEPA has been interpreted by the courts to be a procedural statute with two primary aims.5 First,

it obligates federal agencies to consider every significant aspect of the environmental impact of

an action before proceeding with it. Second, it ensures that the agency will inform the public that

it has indeed considered environmental concerns in its decision-making process. In this capacity,

NEPA has become one of the primary mechanisms through which the public is able to participate

in the federal decision-making process.

As a procedural statute, the courts have ruled that NEPA does not require agencies to elevate

environmental concerns above others. Instead, NEPA requires only that the agency assess the

environmental consequences of an action and its alternatives before proceeding. If the adverse

environmental effects of the proposed action are adequately identified and evaluated, the agency

is not constrained by NEPA from deciding that other benefits outweigh the environmental costs

and moving forward with the action.

NEPA is a declaration of policy with action-forcing provisions, not a regulatory statute

comparable to other environmental laws intended to protect air, water, wetlands, or endangered

species. It establishes the basic framework for integrating environmental considerations into

federal decision making. However, the law itself does not provide many details on how this

process should be accomplished. For example, although NEPA gave CEQ a variety of duties, the

authority to promulgate regulations implementing NEPA’s environmental review requirements

was not one.6 That authority was ultimately given to CEQ by executive order in 1977,7 but it did

The National Conference of State Legislatures, Environment, Energy and Transportation Program, “Assessment of

Regulatory and Administrative Streamlining at United States Department of Energy Cleanup Sites,” August 1996. This

report was available online on or around November 2004, but is no longer available.

Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97, 100 (1983).

After its regulations were promulgated, four United States Supreme Court decisions did determine that CEQ’s

interpretation of NEPA’s requirements was owed “substantial deference” by courts.

Executive Order 11991, Relating to Protection and Enhancement of Environmental Quality, signed by President

Carter, May 24, 1977, 42 Fed. Reg. 26967. The final CEQ regulations were ultimately promulgated in 1978 and

became effective in 1979 (see, 43 Fed. Reg. 55978, November 28, 1978; 40 C.F.R. §§ 1500-1508). In addition to

promulgating regulations, CEQ has provided support and informal guidance to federal agencies implementing NEPA’s

requirements. For example, in 1981, CEQ issued its “Forty Most Asked Questions Concerning CEQ’s NEPA

Regulations.” That and other CEQ guidance are available at http://ceq.eh.doe.gov/nepa/nepanet.htm.

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not include authority to enforce those regulations.8 A major impetus for CEQ’s regulations was to

reduce the time and paperwork required to prepare an EIS.

The CEQ regulations were intended to be generic in nature. Each federal agency was required to

develop its own NEPA procedures that would be specific to typical classes of actions undertaken

by that agency.9 Separately, CEQ regulations directed federal agencies to review their existing

policies, procedures, and regulations to ensure that they were in full compliance with the intent of

NEPA.10

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Section 102(2)(C) of NEPA requires that all federal decisions include in “every recommendation

or report on proposals for legislation and other major Federal actions significantly affecting the

quality of the human environment, a detailed statement by the responsible official on the

environmental impact of the proposed action.”11 The “detailed statement” is now referred to as an

environmental impact statement (EIS).

Projects for which it is not initially clear whether impacts will be significant require the

preparation of an environmental assessment (EA). If, at any time during the EA preparation, it is

determined that a project’s impacts will be significant, an EIS must be prepared. However, if in

preparing the EA the agency determines that the project will have no significant environmental

impact, a Finding of No Significant Impact (FONSI) will be issued by the lead agency. The

FONSI must briefly present the reasons why the project will not have a significant effect on the

environment.

If a project is of a type or in a category known to have no significant environmental impacts, it is

categorically excluded from the requirement to prepare and EA or EIS. Individual agencies are

required to specifically list, in their respective NEPA procedures, those projects that are likely to

be considered categorical exclusions (CEs).12 For example, DOT has identified the construction

of bicycle and pedestrian lanes, landscaping, and the installation of traffic signals as actions that

would generally be classified as categorical exclusions.13

Some agency NEPA procedures answer the question of whether or what types of documentation

may be required to demonstrate that a project is categorically excluded, by focusing on whether

the project involves “extraordinary circumstances” that may cause a normally excluded action to

CEQ is charged with providing oversight and guidance to agencies with regard to EIS preparation. EPA is required to

review and comment publicly on the environmental impacts of proposed federal activities, including those for which an

EIS is prepared. EPA is also the official recipient of all EISs prepared by federal agencies. However, neither EPA nor

CEQ has enforcement authority with regard to an agency’s environmental review requirements.

40 C.F.R. § 1507.3.

40 C.F.R. § 1500.6.

42 U.S.C. § 4332(2)(C).

40 C.F.R. § 1507.3. Sometimes such actions are referred to as being categorically excluded or exempt from NEPA.

However, NEPA does apply to such actions; they are excluded only from the requirement to prepare an EA or EIS.

23 C.F.R. § 771.117.

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have a significant environmental effect.14 An individual agency’s NEPA requirements may also

specify other criteria under which otherwise excluded actions may require documentation to

prove that the CE determination is appropriate.

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Under NEPA, an EIS must be prepared for “every recommendation or report on proposals for

legislation and other major federal actions significantly affecting the quality of the human

environment.” Interpretation of each element of this phrase has been the subject of myriad court

decisions and guidance from CEQ. The CEQ regulations, at 40 C.F.R. § 1508.18, specify that the

term “major” in the phrase “major federal action” reinforces but does not have meaning

independent of “significantly.” Therefore, in determining whether and how NEPA will apply to an

action, it is necessary to determine whether an action is in fact a federal one and, if so, if its

environmental impacts will be significant.

“Federal” actions include those that are potentially subject to federal control and responsibility.

Such actions include “projects and programs entirely or partly funded, assisted, conducted,

regulated, or approved by federal agencies.”15 Specifically, federal agency compliance with NEPA

may be required for actions that require a federal permit or other regulatory decision to proceed.16

CEQ regulations require agencies to determine the significance of a project’s impacts on a caseby-case basis, based on its context and intensity.17 Because degrees of impact must be evaluated,

such an evaluation may be highly subjective. Although court decisions have been rendered

regarding most elements of NEPA implementation, few federal courts have attempted to

specifically define “significance.” Most often, a court will determine whether the evidence for a

given project involved potentially significant environmental effects and then decide whether the

agency’s decision not to prepare an EIS was reasonable under circumstances specific to that

project.18

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An EIS is a full-disclosure document that must include the following elements:

•

Purpose and Need Statement. A brief statement, developed by the agency

responsible for the action, specifying the underlying purpose of a project and the

need to which the agency is responding.

•

Alternatives. A description of all reasonable project alternatives to meet the

stated project purpose and need. CEQ has interpreted “reasonable” alternatives to

include those that are practical or feasible from the technical and economic

standpoint and that use common sense, rather than simply desirable from the

40 C.F.R. § 1508.4.

40 C.F.R. § 1508.18(a).

40 C.F.R. § 1508.18(b)(4). Further, the term federal agency is defined as all agencies of the federal government, but

does not mean the Congress, the Judiciary, or the President (40 C.F.R. § 1508.12).

40 C.F.R. § 1508.27.

Dinah Bear, “NEPA at 19: A Primer on an ‘Old’ Law with Solutions to New Problems,” Environmental Law Review,

February 1989, available online on the “CEQ Guidance” Web page at http://ceq.eh.doe.gov/nepa/regs/guidance.html.

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standpoint of the agency or a potentially affected stakeholder.19 Consideration of

a “no action” alternative is also required.20

•

Affected Environment. A succinct description of the environment affected by

the alternatives under consideration (e.g., endangered species habitat, wetlands,

historic sites).

•

Environmental Consequences. An analysis of the impacts of each alternative on

the affected environment, including a discussion of the probable beneficial and

adverse social, economic, and environmental effects of each alternative. This

section must also include, where applicable, a discussion of the direct, indirect,

and cumulative effects of each alternative and the significance of those effects, a

description of the measures proposed to mitigate adverse impacts, and methods

of compliance with any applicable legal requirements.

Preparation of an EIS is done in two stages, resulting in a draft and final EIS. Once the final EIS

is approved and the agency decides to take action, the lead agency must prepare a public record of

decision (ROD). CEQ regulations specify that the ROD must include a statement of the final

decision, all alternatives considered by the agency in reaching its decision, and whether all

practicable means to avoid or minimize environmental harm from the alternative selected have

been adopted and, if not, why they were not.21 Generally, a federal project cannot proceed (e.g.,

final design activities, property acquisition, or project construction) until a ROD for the final EIS

is issued.22 (For more information about the required elements of an EIS, see CRS Report

RL33152, The National Environmental Policy Act: Background and Implementation, by (name

redacted).)

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The agency responsible for preparing the necessary NEPA documentation is the lead agency. In

the appropriate NEPA documentation (e.g., EIS or EA), the lead agency must demonstrate that

comments were solicited from relevant federal, state, and local agencies (referred to as

“participating” agencies), as well as from the public. Relevant agencies obligated to provide

comments are those with jurisdiction by law or special expertise with respect to any

environmental issue associated with the project. For example, if a project alternative affects a

historic site, the Advisory Council on Historic Preservation may be required to participate in the

NEPA process as a “cooperating agency.”23 If impacts to wetlands are identified, the Corps may

need to provide comments or issue a permit before a project may proceed.

Council on Environmental Quality, Forty Most Asked Questions Concerning CEQ’s NEPA Regulations, response to

“Alternatives Outside the Capability of Applicant or Jurisdiction of Agency,” available at http://ceq.eh.doe.gov/nepa/

regs/40/40P1.htm.

40 C.F.R. § 1508.25.

40 C.F.R. § 1505.2.

For projects with less than significant environmental impacts, the project cannot proceed until the action is classified

as a CE or a FONSI is approved for an EA.

40 C.F.R. §§ 1501.6 and 1508.5.

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To integrate the compliance process and avoid duplication of effort, NEPA regulations specify

that, to the fullest extent possible, agencies must prepare the NEPA documentation concurrently

with any other environmental requirements.24 The appropriate NEPA documentation must also

indicate any federal permits, licenses, and other entitlements required to implement the proposed

project. This means that compliance requirements of any additional environmental laws,

regulations, or executive orders must be determined (but not necessarily completed) during the

NEPA process. In this capacity, NEPA functions as an umbrella statute, meaning it is a framework

to coordinate or demonstrate compliance with any studies, reviews, or consultations required by

any other environmental laws. The use of NEPA in this capacity has led to confusion. The need to

comply with another environmental law, such as the Clean Water Act or Endangered Species Act,

may be identified within the framework of the NEPA process, but NEPA itself is not the source of

the obligation. If, hypothetically, the requirement to comply with NEPA were removed,

compliance with each applicable law would still be required.

For additional information about NEPA’s history and requirements, see CRS Report RL33152,

The National Environmental Policy Act: Background and Implementation, by (name redacted).

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Debate regarding the need for streamlining measures originates from assertions that NEPA delays

federal projects. The debate stems from disagreement among stakeholders regarding the degree to

which, if any, the NEPA process itself is to blame for federal project delays. Delays attributed to

the NEPA process generally fall into two broad categories: those related to the time needed to

complete required documentation (primarily EISs) and delays resulting from NEPA-related

litigation.

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The research, data collection, analyses, and public participation necessary to prepare NEPA

documentation takes time, in some cases years. The debate begins when stakeholders attempt to

determine the extent to which the preparation of NEPA documentation alone adds to or delays the

time to complete a federal project. Several unique aspects of NEPA make it difficult to determine

the degree to which the NEPA process itself is the source of delays.

First, other than the Department of Energy (DOE), and very recently DOT, federal and state

agencies do not routinely maintain information on the time needed to complete the NEPA process.

Therefore, gathering accurate data specific to the time needed to prepare NEPA documents is

difficult. Also, for some classes of projects, document preparation under NEPA is generally done

concurrently with other stages of a project, such as preliminary project design. If a project

undergoes specification changes, those changes may necessitate changes in NEPA analysis and

documentation. Consequently, the time to complete the NEPA process may be extended.

However, determining if such delays are directly attributed to the NEPA process itself may be

problematic.

40 C.F.R. § 1502.25.

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Another challenge related to gathering data deals with how one measures the time taken on a

federal project that actually involves the NEPA process. When measuring the length of the NEPA

process for a given project, an agency generally looks at the date of the notice of intent (NOI) to

file an EIS and the date of the ROD. However, these dates do not necessarily reflect the time it

take to prepare NEPA documentation for a given project. A federal project may stop and restart

for any number of reasons that are unrelated to NEPA or any other environmental requirement.

This may be the case particularly for costly or controversial projects. For example, filing an NOI

in 1988 and subsequently issuing the ROD in 1998 does not necessarily mean that it took 10

years to complete the EIS; the time it took to complete the project may have been associated with

funding issues, changes in agency priorities, community opposition to the project, or engineering

requirements, to name a few.

Second, a project having significant impacts on the environment is likely to require compliance

with a number of environmental laws. The use of NEPA as an umbrella statute blurs the

distinction between the time to complete the NEPA process and the time it takes to address other

environmental requirements. The sometimes extensive reviews required under other

environmental laws by agencies such as the Corps, the Fish and Wildlife Service, the Coast

Guard, or EPA, as well as various state regulatory agencies, are often attributed to the NEPA

process. In fact, the NEPA process may be extended as a result of the need to complete a

permitting process or other analysis required under separate statutory authority (e.g., the Clean

Water Act or Endangered Species Act), over which the lead agency may have no authority. One

agency, FHWA, observed that many delayed projects or failed processes can be traced back to a

disintegrated and disconnected approach to meeting NEPA and other requirements. FHWA stated

that experience in administering NEPA has shown that many practitioners do not fully understand

or practice the approach of using the NEPA process as an umbrella for integrating all required

studies, reviews, or consultations.25

Third, a project with significant impacts may be a large, high-profile, complex project costing

millions of dollars. Depending on the impacts, such projects may generate local controversy and

be opposed by certain stakeholders. Delays of such projects are well-known among agency

officials and interested stakeholders. However, such projects make up a small percentage of all

federal actions. Further, although examples of NEPA-related delays associated with such projects

exist, few data suggest that delays associated with them are widely applicable to all federal

projects subject to NEPA.

Finally, it has been observed that it takes longer to complete necessary NEPA documentation

today than it did in the 1970s. The NEPA process as it is implemented today is not comparable to

the NEPA process soon after the law was enacted. Until November 1978, there were no binding

CEQ regulations outlining EIS, EA, or CE requirements. While an EIS may have been completed

relatively quickly during the 1970s, compared with today, it may not have withstood judicial

review. Further, many agencies did not have their own NEPA procedures until well into the

1980s. Such procedures may make the process take longer today, but they may result in fewer

overall project delays in situations where adherence to the procedures results in a more legally

sound EIS. Also, there were fewer environmental laws and regulations in the 1970s (see reference

to the use of NEPA as an umbrella statute, above), and the public is more involved in the NEPA

process today than in the 1970s.

Notice of Proposed Rulemaking, 65 Fed. Reg. 33965 (May 25, 2000).

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Critics of NEPA often cite litigation as a significant cause of NEPA-related project delays. Such

critics charge that individuals and groups who disapprove of a federal project will use NEPA as

the basis for litigation to delay or halt that project. Others argue that litigation only results when

an agency does not comply with its own NEPA procedures.

Since 2001, plaintiffs have primarily cited two reasons for filing NEPA-related lawsuits. The first

is that the required NEPA documentation (e.g., an EIS, EA, or FONSI) was inadequate. That may

mean that they charge that, among other things, an EIS or EA did not include sufficient analysis

of all project alternatives, did not consider all “reasonable” project alternatives, or did not

adequately analyze the cumulative or indirect impacts of an action. The second is that an EA was

prepared when an EIS should have been (i.e., a FONSI was issued when impacts were in fact

significant).26

NEPA litigation began to decline in the mid 1970s, and has remained relatively constant since the

late 1980s. This may be due in part to improved agency compliance after promulgation of CEQ

and agency NEPA procedures, and improved agency expertise at preparing required

documentation. For example, in 2005, a total of 118 NEPA-related cases were filed.27 The

majority of suits were filed against two agencies: the Department of Agriculture, or USDA

(specifically the U.S. Forest Service, with 50 cases filed against it) and the Department of the

Interior (26 cases filed).28

Although litigation has decreased, agency concern regarding the threat of litigation still has an

affect on the NEPA process, particularly for complex or controversial projects. A project sponsor

may be mindful of previous judicial interpretation when preparing NEPA documentation in an

attempt to prepare a “litigation-proof” EIS. Stakeholder opinions vary on this aspect of NEPA

implementation. Some look at it positively, asserting that the fear of a lawsuit makes agencies

more likely to adhere to NEPA’s requirements. Others counter that the threat of litigation may

lead to the generation of wasteful documentation and analysis that does not add value to, but can

slow, the decision-making process.

Like issues related to documentation, several unique elements to NEPA have led to litigation

playing a prominent role in the law’s implementation. For example, unlike other environmentrelated statutes, NEPA’s requirements apply only to federal agency actions and no individual

agency has enforcement authority over those requirements. The absence of government

enforcement authority is sometimes cited as the reason that litigation has been chosen as an

avenue by individuals and groups that disagree with how an agency meets NEPA’s mandate or

EIS requirements for a given project (e.g., they may charge that an EIS is inadequate or that the

environmental impacts of an action will in fact be significant when an agency claims that they are

not).

Another unique element of NEPA is the role that public participation is intended to play in the

process. In 1997, a CEQ study found that the extent to which the public is involved in the

Council on Environmental Quality, “2005 Litigation Survey,” available at http://ceq.eh.doe.gov/nepa/nepanet.htm.

Ibid.

Many of these suits relate to the finalization of land and resource management plans and implementation projects on

federal land.

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decision-making process has a bearing on the potential for litigation.29 The study found that some

states, citizen groups, and businesses believe that certain EAs are prepared to avoid public

involvement (i.e., because public participation requirements are not specified for EAs). As stated

earlier, disagreement regarding the decision to prepare an EA, rather than an EIS, is the most

common source of conflict and litigation under NEPA.

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In recent years, numerous legislative and administrative proposals have been proffered to

streamline compliance with NEPA’s requirements. Those proposals have generally been unique to

the categories of projects they are intended to expedite. However, most streamlining provisions,

particularly legislative proposals, include similar elements. For example, discussed below are

elements common to legislative streamlining provisions in laws enacted in the 108th, 109th, and

110th Congresses (for a discussion of selected laws in which these provisions are included, see the

“Legislation Enacted” section, below). Also discussed below are selected issues associated with

each element.

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Most legislative streamlining provisions direct the lead agency to create some form of

coordinated environmental review or compliance process. This process often requires the lead

agency to establish specific administrative procedures for processing permits, license

applications, or environmental reviews under the NEPA process. Often, that coordinated process

must be delineated in a Memorandum of Understanding (MOU) between the designated lead

agency and participating agencies for certain classes of projects (e.g., projects that require

preparation of an EIS or EA). Legislation usually delineates required elements of the coordinated

process, the content of the MOU, or both. For example, it may specify certain decision-making

authorities of the lead and participating agencies in the selection and analysis of project

alternatives, and it may specify methods to conduct the environmental review process under

NEPA concurrently with other environmental requirements.

Some legislative proposals have allowed the lead agency to establish such a process only if

requested by a project sponsor or applicant. Others specify that such a process must be

implemented for entire classes of projects undertaken by an agency (e.g., all projects that require

an EIS).

Proponents of a coordinated compliance process argue that it is crafted to address the charge that

the problem of delays with the NEPA process lies in its implementation and that a better

coordinated process could lead to better and faster results. Critics are concerned with the details

of such processes, such as limits on participating agency input or the imposition of strict

deadlines, especially if those deadlines could limit public involvement.

Council on Environmental Quality, The National Environmental Policy Act: A Study of Its Effectiveness After

Twenty-five Years, January 1997, p. 19, available at http://ceq.eh.doe.gov/nepa/nepanet.htm.

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CEQ’s regulations currently include numerous provisions intended to reduce delays and

paperwork.30 Following are current requirements in CEQ regulations that are often found in

streamlining proposals (often as part of the coordinated environmental review process, referred to

above):

•

Integrate requirements of NEPA with other planning and environmental review

procedures so that all procedures run concurrently, rather than consecutively.

•

Integrate the NEPA process at the earliest possible time to avoid delays and

potential conflicts.

•

Establish appropriate time and page limits on EISs.

•

Emphasize interagency cooperation before the EIS is prepared, rather than

adversary comments on a completed document.

Some streamlining proponents argue that these directives would be more strongly emphasized if

put in to law. Others counter that if similar regulatory provisions are already required of agencies,

there is no guarantee that such statutory provisions would enable or cause agency staff to execute

them more efficiently. Further, they argue that the difficulty in integrating many of these existing

streamlining requirements has more to do with a lack of sufficient staff and resources to perform

those responsibilities than a lack of will to do so.

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As discussed previously, the lead agency is the agency responsible for preparing the NEPA

analysis and documentation. Most streamlining legislation establishes in law a specific agency as

the lead agency for certain categories of projects and delineates that agency’s authority in the

environmental compliance process (e.g., DOT is to be the lead agency for surface transportation

projects). Many legislative streamlining provisions authorize the designated lead agency to set

deadlines applicable to participating agency actions and to implement dispute resolution

procedures. Some proposals also specify in law the existing requirement that the lead agency is

authorized to determine an EIS’s “purpose and need” statement and to define project alternatives,

as required under NEPA.31

Establishing a lead agency in legislation specific to individual agency actions may serve to

reassert lead agency authority to participating agencies. However, since this right is already

afforded to federal agencies under current law and regulatory requirements, additional legislation

may not significantly streamline the compliance process.

40 C.F.R. §§ 1500.2 and 1500.4-1500.5.

See correspondence between Transportation Secretary Norman Mineta and CEQ Chairman James Connaughton

regarding existing parameters of lead agency authority. Secretary Mineta asked for clarification of the roles of lead and

cooperating agencies with regard to developing a highway project’s purpose and need. While not addressed in the

correspondence, NEPA regulations also specify the selection of reasonable alternatives to the proposed action, which

must also be analyzed, as within the authority of the lead agency. Text of Secretary Mineta’s May 6, 2003 letter, and

Chairman Connaughton’s May 12, 2003, response are available at http://www.dot.gov/execorder/13274/impsched/

letters/minetamay6.htm.

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One element of the NEPA process that has been identified by some stakeholders as a potential

cause for delay is the added step of obtaining federal agency approval of less complex

documentation, such as categorical exclusion determinations. Some industry stakeholders argue

that some of these federal environmental responsibilities could be delegated to states, which could

speed up the environmental review process by eliminating a significant layer of bureaucracy that

federal approval entails.

This approach is not endorsed by environmental stakeholders who have expressed concern that

the delegation of authority to the states would be the “fox guarding the hen house.” They argue

that states often have vested interests in moving projects forward, and thus their determinations

may not have the level of scrutiny that would be provided with federal oversight.

One potential challenge to state delegation of authority includes a possible lack of staff qualified

to process potentially complex documentation. In May 2003, the General Accounting Office

(GAO, now the Government Accountability Office) reported that some transportation

stakeholders identified state agency staff shortages as a significant cause of project delays.32 If a

state or local agency does not have sufficient staff to accommodate its needs, the delegation of

additional authority to that agency may serve to slow the compliance process instead of

streamline it. Staff at the state or local level may have difficulty determining all environmental

requirements applicable to their project, which could further slow the process if it takes longer to

ensure that required documentation is complete. It may be a difficult task for a project sponsor to

review and approve the documentation that will ultimately demonstrate that all environmental

requirements have been met. For example, a state may have had a consultant prepare NEPA

documentation for an EIS, but relied on the federal agency to provide oversight for a CE

determination.

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One method of expediting the NEPA process includes specifically designating certain projects as

categorical exclusions (CEs). Although this report focuses on legislative efforts to streamline the

NEPA process, agencies may also use the regulatory process to add new CEs to their NEPA

procedures. As discussed previously, individual agencies are required to list specific types of

projects that can be categorically excluded from the requirement to prepare an EIS or EA.

According to CEQ, most agency CEs were approved 10 or more years ago.33 The regulatory

process usually begins with a data request from an agency’s headquarters to its field offices. The

data gathered and submitted is used to develop the proposal for new and revised CEs. In

developing CEs, most agencies use information from past actions to establish the basis for the “no

significant effect” determination. New agency CEs are proposed through the public rule-making

General Accounting Office, Highway Infrastructure: Stakeholders’ Views on Time to Conduct Environmental

Reviews of Highway Projects, GAO-03-534, (Washington, D.C., May 23, 2003).

See The NEPA Task Force Report to the Council on Environmental Quality: Modernizing NEPA Implementation,

Chapter Five, “Categorical Exclusions,” September 2003, available at http://ceq.eh.doe.gov/ntf/report/index.html. This

report also includes information about the documentation required for CEs and the agency process for developing and

revising CEs; and a discussion of agency concerns regarding establishing, revising, and using CEs. In response to those

concerns, on September 19, 2006, CEQ proposed and requested comments on “The National Environmental Policy

Act—Guidance on Categorical Exclusions,” 71 Fed. Reg. 54816.

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process; the proposed CEs are published in the Federal Register and open to public comment

before final approval.

In using the legislative process to designate new CEs, Congress may list specific actions

undertaken by an agency that will be presumed to be categorically excluded under NEPA.

Proponents of the legislative designation of CEs argue that the regulatory process of adding CEs

is cumbersome. They further argue that because such projects have no significant environmental

impact, their designation should be done more quickly. Opponents to this approach argue that

legislatively designating actions as CEs circumvents the process and eliminates the potential for

public comment. Further, since CE determinations generally do not provide an opportunity for

public comment, public involvement in such projects will likely be eliminated. Also, opponents

argue that some actions in categories designated by law as CEs may in fact have potentially

significant environmental impacts.

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NEPA contains no express provision for judicial review of agency action and hence, not

surprisingly, no deadline on when such petitions for review must be filed. In the large majority of

instances, cases that consider delay in the filing of NEPA litigation have applied laches, an

equitable defense under which a court may dismiss an action after assessing the length and

reasonableness of the filing delay and the resulting prejudice to the defendant. Numerous courts

have said that laches is to be sparingly applied, however, out of concern that NEPA’s

environmental objectives may be frustrated. In other cases, courts have turned to the statute of

limitations used for judicial review under the Administrative Procedure Act. That statute (at 28

U.S.C. § 2401) mandates broadly that civil actions against the United States must be filed within

six years after the right of action first accrues.

One streamlining method involves the establishment of a specific statute of limitations on the

judicial review of final agency actions related to NEPA (e.g., publication of a ROD). Proponents

of such provisions argue that other environmental statutes specify statutes of limitations on the

filing of petitions for review, often 60 to 120 days, and that the six years allowed under 28 U.S.C.

§ 2401 is too long. Opponents of such measures fear that if the statute of limitations is too short,

it will effectively eliminate the mechanism for citizen enforcement of NEPA’s environmental

review requirements.

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Recently, there have been numerous legislative and administrative streamlining activities,

including the following:

•

The enactment of legislation that alters individual agency NEPA procedures;

•

administrative changes in individual agency NEPA procedures; and

•

the creation of NEPA “task forces,” established by CEQ and Congress, to study

the NEPA process or expedite implementation of certain types of projects.

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Streamlining legislation typically involves actions undertaken by those agencies that tend to file

more EISs.34 For example, of the 542 draft or final EISs filed with EPA in 2006, 477 were filed by

USDA (primarily the U.S. Forest Service), the Department of Defense, or DOD (primarily the

Corps), the Department of Energy (DOE), the Department of the Interior (DOI), and DOT

(primarily FHWA). The following legislation, enacted in the 108th, 109th, and 110th Congress,35

includes streamlining provisions for certain types of projects within those agencies:

•

Healthy Forests Restoration Act of 2003 (P.L. 108-148): fuel reduction projects

undertaken by the USDA’s Forest Service or the DOI’s Bureau of Land

Management (BLM) on federal land.

•

The Safe, Accountable, Flexible, and Efficient Transportation Equity Act of

2005: A Legacy for Users (SAFETEA-LU, P.L. 109-59): construction of or

modifications to surface transportation projects undertaken by FHWA and the

Federal Transit Administration (FTA).

•

The Energy Policy Act of 2005 (P.L. 109-58): various energy-development

projects, such as oil and gas leasing and permitting on federal land, and the

designation of energy facility rights-of-way and corridors on federal lands.

Streamlining provisions in this law apply primarily to the actions of DOI, DOE,

and FERC.

•

FY2004, FY2005, and FY2006 appropriations laws for DOI and related agencies

(including the USDA’s Forest Service): grazing permit applications.

•

The Water Resources and Development Act (P.L. 110-114): various water

resources projects.

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The law (Title I) authorizes expedited planning and review procedures for projects to reduce

hazardous levels of biomass fuels on federal lands. Priority is directed to reducing fuels near “atrisk communities” and in municipal watersheds where forest fire risk from brush, trees, and other

organic “fuel” is deemed high. Title I authorizes a new, alternative NEPA and public involvement

process for actions aimed at reducing biomass fuels on up to 20 million acres of national forests

or BLM lands in the following areas: in or near a wildland-urban interface and municipal water

supply systems, certain endangered species habitats, and areas affected by wind or ice storms or

by insect or disease epidemics that threaten ecological health or natural resources.

In preparing environmental analyses for authorized fuel reduction projects, the law limits the

number of project alternatives that the Forest Service or BLM is required to analyze. Alternatives

required for consideration depend on the type and location of the project under consideration.

In any given year, most agencies file fewer than 10 draft or final EISs with EPA.

This report addresses only enacted legislation. Numerous bills have been introduced that include streamlining

provisions. Also, for background information regarding legislative modifications to NEPA, see CRS Report 98-417,

Statutory Modifications of the Application of NEPA, by (name redacted).

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For its projects, the Forest Service is to develop a new “pre-decisional” review process to

supplant the existing administrative appeals process. Administrative reviews must be exhausted

before litigation is allowed. Lawsuits against agency projects must be filed in the district court for

the area in which the project is proposed. Courts are encouraged to review cases expeditiously.

Preliminary injunctions are limited to 60 days, but can be renewed, and courts are directed to

balance short- and long-term impacts of action and of inaction.

These provisions have been controversial. Proponents assert that biomass fuels are at

unprecedented, unnatural levels that pose serious threats to ecosystems and to humans and their

structures in or near wildlands. They also argue that NEPA analysis, public participation, and

legal and administrative challenges to decisions are delaying actions needed to protect people,

homes, and ecosystems. Opponents argue that short-circuiting the public involvement and review

process can allow timber sales and other environmentally harmful, socially undesirable activities

in the guise of fire protection.

For more information on issues related to the Healthy Forests Restoration Act of 2003, see CRS

Report RS22024, Wildfire Protection in the 108th Congress, by (name redacted).

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The Safe, Accountable, Flexible, and Efficient Transportation Equity Act of 2005: A Legacy for

Users (SAFETEA-LU) authorizes federal surface transportation programs (highway, highway

safety, and transit programs) undertaken by DOT for FY2005-FY2009. With regard to

streamlining NEPA, many of the provisions in SAFETEA-LU codify existing regulatory

requirements, such as designating DOT as the lead agency for surface transportation projects,

specifying the role of the lead and cooperating agencies, and allowing deadlines for decision

making to be set. Following are key provisions of SAFETEA-LU related to streamlining:

•

Establishing procedures for “Efficient Environmental Reviews for Project

Decision-Making,” part of which includes the collaborative development, by the

lead and participating agencies, of a project’s statement of purpose and need and

project alternatives, including deadlines on agency comments.

•

Establishing a 180-day judicial limitation on claims challenging final agency

actions related to environmental requirements.

•

Authorizing transportation funds to help agencies that are required to expedite

the environmental review process.

•

Establishing a dispute resolution process that may be initiated by a state governor

or project sponsor when agencies disagree on elements of the environmental

review process.

•

Authorizing states to determine whether certain classes of projects may be

processed as categorical exclusions.

•

Authorizing state pilot programs to allow participating states to assume certain

federal responsibilities for compliance with environmental laws.

For more information, see CRS Report RL33057, Surface Transportation Reauthorization:

Environmental Issues and Legislative Provisions in SAFETEA-LU (H.R. 3), and CRS Report

RL32024, Background on NEPA Implementation for Highway Projects: Streamlining the Process,

both by (name redacted).

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The environmental streamlining provisions in the Energy Policy Act primarily specify procedures

intended to expedite the completion of federal authorizations for a variety of energy development

projects. Federal authorizations include permits, special use authorizations, and approvals that

may be required under a number of local, state, tribal, or federal requirements (e.g., permitting

requirements under the Clean Air Act or the Clean Water Act). The act also includes several

provisions intended to streamline compliance with environmental reviews under NEPA.

Categories of projects or actions for which NEPA streamlining provisions are provided include

the following:

•

Designation of right-of-way corridors. Under § 368, the act requires the

Secretaries of Agriculture, Commerce, Defense, Energy, and the Interior, in

consultation with FERC, states, tribal or local units, affected utility industries,

and other interested persons, to complete, within two years of enactment, any

environmental reviews required for the designation of right-of-way corridors for

oil, gas, and hydrogen pipelines and electricity transmission and distribution

facilities on federal land. The two-year environmental review deadline applies to

corridor designations in Arizona, California, Colorado, Idaho, Montana, Nevada,

New Mexico, Oregon, Utah, Washington, and Wyoming. For other states, the

identification of such corridors is required within four years of enactment (there

is no reference to a deadline for environmental reviews in those states).

•

Commercial leases for oil shale and tar sands. Under § 369, the act requires

the Secretary of the Interior to complete a programmatic EIS for a commercial

leasing program for oil shale and tar sands resources on public lands, with an

emphasis on the most “geologically prospective” lands within each of the states

of Colorado, Utah, and Wyoming. This section also establishes an interagency

coordination process that designates DOI as the lead agency to coordinate all

federal authorizations related to oil shale and tar sands projects.

•

Rights-of-way on public land for natural gas pipelines and “utility facilities.”

Under § 372, the act requires the Secretary of Energy, in consultation with

Secretaries of the Interior, Agriculture, and Defense to enter into an MOU to

coordinate all applicable federal authorizations and environmental reviews

relating to processing a right-of-way application. Among other provisions, the

MOU must provide for an agreement among the affected federal agencies to

prepare a single environmental review document to be used as the basis for all

federal authorization decisions granting rights-of-way on public land for natural

gas pipelines and “utility facilities” (e.g., facilities or systems for the

transportation or storage of oil, natural gas, synthetic liquid fuel, and gaseous

fuel; or the generation, transmission, and distribution of electric energy).

•

Siting interstate electric transmission facilities. Under § 1221, the act amends

the Federal Power Act (16 U.S.C. 824 et seq.) to establish, among other

provisions, a process to coordinate federal authorizations required to site a

transmission or distribution facility and designates the Department of Energy

(DOE) as the lead agency responsible for coordinating all applicable federal

authorizations or related environmental reviews. It also allows DOE to set

deadlines related to federal authorizations and environmental reviews.

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Under § 390, the act designates specific actions undertaken by the Secretary of the Interior in

managing public lands or the Secretary of Agriculture in managing National Forest System lands

that will be presumed to be categorical exclusions under NEPA. Those activities, if conducted

pursuant to the Mineral Leasing Act for the exploration or development of oil or gas, are as

follows:

•

Individual surface disturbances of less than 5 acres, as long as the total surface

disturbance on the lease is not greater than 150 acres and site-specific analysis in

a document prepared pursuant to NEPA has been completed previously.

•

Drilling an oil or gas well at a location or well pad site at which drilling has

occurred previously within five years prior of the date of starting (referred to as

spudding) the well.

•

Drilling an oil or gas well within a developed field for which an approved land

use plan or any environmental document prepared pursuant to NEPA analyzed

such drilling as a reasonably foreseeable activity (if that plan or document was

approved within the previous five years).

•

Placement of a pipeline in an approved right-of-way corridor (as long as the

corridor was approved within the previous five years).

•

Maintenance of a minor activity, other than any construction or major renovation

of a building or facility.

For more information, see CRS Report RL32873, Key Environmental Issues in the Energy Policy

Act of 2005 (P.L. 109-58, H.R. 6), by (name redacted) et al.

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Other legislation with provisions that may be considered streamlining include various Interior

appropriations bills. The streamlining provisions apply to requirements to prepare a NEPA

analysis for grazing permits administered by the USDA’s Forest Service or the Department of the

Interior’s BLM. The appropriate environmental analysis, conducted either by the Forest Service

or BLM, must be completed before the agency can issue or reissue a grazing permit. A significant

backlog of permit applications and renewals currently exists at both agencies. Since 1999, to

respond to that backlog, a provision has been included each year in the Interior appropriations bill

that gives the agencies the authority to extend grazing permits and leases under their same terms

and conditions until completion of NEPA compliance.36

The 2003 Consolidated Appropriations Resolution (P.L. 108-7, Division F, Title III, § 328)

directed the Secretary of Agriculture to renew grazing permits for those permittees whose permits

expired prior to or during FY2003. The NEPA analyses were still required to be completed on

those allotments, and the terms and conditions of the renewed grazing permit were required to

For more information about NEPA and livestock grazing permits administered by the Forest Service and BLM, see

the statement of Fred Norbury, Associate Deputy Chief, National Forest System, Forest Service, before the Senate

Subcommittee on Public Lands and Forests, Committee on Energy and Natural Resources, September 28, 2005,

available at http://energy.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=1500; and the

statement of Jim Hughes, Deputy Director Bureau of Land Management, before the Senate Energy and Natural

Resources Committee, Subcommittee on Public Lands and Forests, Oversight of Grazing on Public Lands, June 23,

2004, available at http://energy.senate.gov/hearings/testimony.cfm?id=1237&wit_id=1635.

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remain in effect until the NEPA analyses were completed. The FY2004 Interior Appropriations

Act (P.L. 108-108, § 325) further directed the Secretaries of the Interior and Agriculture to renew

grazing permits that expired or were transferred or waived between FY2004 and FY2008. The act

also directed the Secretaries to report to Congress beginning in November 2004, and every two

years thereafter, the extent to which analysis required under applicable laws is being completed

prior to the expiration of grazing permits. The 2005 Consolidated Appropriations Act (P.L. 108447, Division E, Title III, § 339) specified that for FY2005 through FY2007, certain decisions

made by the Secretary of Agriculture to authorize grazing would be categorically excluded under

NEPA, if the following conditions apply:

•

the decision continues current grazing management of the allotment;

•

monitoring indicates that current grazing management is meeting, or

satisfactorily moving toward, objectives in the land management plan; and

•

the decision is consistent with agency policy concerning extraordinary

circumstances.

The total number of allotments that may be categorically excluded under this authority may not

exceed 900.

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Section 2044 of the law includes provisions for the “coordination and scheduling of federal, state,

and local actions.” It applies to the construction or modification of certain water supply,

wastewater infrastructure, flood damage reduction, storm damage reduction, ecosystem

restoration, or navigation projects that requires the approval of the Secretary of the Army. The

provision requires the Secretary, upon the request of a “non-Federal interest,” to establish a

schedule for consolidating federal, state, and local agency, and Indian tribe environmental

assessments, project reviews and permit issuance. The Secretary is required, to the extent

practicable, to consolidate hearing and comment periods, procedures for data collection and

report preparation, and the environmental review and permitting processes associated with the

project and related activities. Any costs incurred to carry out this consolidated scheduling process

must be paid by the non-federal interest.

Section 2045 of the law, “Project Streamlining,” calls for the development and implementation of

a “coordinated project review process” for certain water resources projects. The process may

require that all reviews, analyses, opinions, permits, licenses, and approvals required by a federal,

state, or local agency or Indian tribe will be conducted, to the maximum extent practicable,

concurrently and completed within a time period established by the Secretary in cooperation with

“jurisdictional agencies.” As soon as practicable, the Secretary must identify those jurisdictional

agencies, which include all federal, state, and local government agencies and Indian tribes that

may: have jurisdiction over a project; be required by law to conduct or issue a review, analysis, or

opinion for the project; or be required to make a determination on issuing a permit, license, or

approval for the project. Further, any time periods established within the context of the

coordinated review process must be reached in cooperation with the jurisdictional agencies. The

coordinated review process may be incorporated into an MOU between the Secretary and the

jurisdictional agencies. The law also specifies procedures that the Secretary must follow if project

deadlines are missed, and specifies state authority to identify state jurisdictional agencies that

may choose to participate in the coordinated review process.

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Like legislative streamlining efforts, administrative streamlining procedures are specific to the

programs undertaken by each agency. Selected examples of agency actions that may be

categorized as streamlining NEPA are discussed below.

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In the past five years, the primary mechanism for streamlining the NEPA process for Forest

Service activities has been through the expansion of the agency’s list of CEs.37 For example, since

2003, the following projects have been designated as CEs:38

•

forest fuels reduction activities (up to 1,000 acres treated mechanically or 4,500

acres burned by prescription) and rehabilitation activities for lands (up to 4,200

acres) and infrastructure affected by fires or fire suppression;39

•

“small” timber harvesting projects (up to 70 acres of live trees or up to 250 acres

of dead or dying trees or to control insects of disease);40

•

certain administrative changes to special-use authorizations; and41

•

land management plans, plan amendments, and plan revisions to its list of CEs.42

For more information about these categorical exclusions, see CRS Report RL33792, Federal

Lands Managed by the Bureau of Land Management (BLM) and the Forest Service (FS): Issues

for the 110th Congress, by (name redacted) et al. (see particularly: “FS NEPA Application and

Categorical Exclusions.”).

In addition to expanding its list of CEs, the Forest Service modified its application of

“extraordinary circumstances” when determining whether a project qualifies as a CE.43

Previously, the rule appeared to automatically preclude an action from being categorically

excluded if extraordinary circumstances were present; the new rule gives the responsible official

discretion to determine whether extraordinary circumstances warrant NEPA analysis and public

involvement in otherwise exempt projects.

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On February 11, 2004, the Federal Energy Regulatory Commission (FERC), DOT, and the U.S.

Coast Guard announced an interagency agreement to provide for the comprehensive and

coordinated review of land and marine safety and security issues at the nation’s liquefied natural

For more information, see the USDA Forest Service Web page “Categorical Exclusion for Developing, Revising, or

Amending Land Management Plans,” available at http://www.fs.fed.us/emc/plan_ce/index.html.

This list does not include CEs required to be designated under provisions of the Healthy Forest Act or the Energy

Policy Act of 2005.

68 Fed. Reg. 33813 (June 5, 2003).

68 Fed. Reg. 44598 (July 29, 2003).

69 Fed. Reg. 40591 (July 6, 2004).

71 Fed. Reg. 75481 (December 15, 2006).

67 Fed. Reg. 54622 (August 23, 2002).

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gas (LNG) import terminals. With a goal of reducing duplication of agency effort and maximizing

the “exchange of relevant information related to the safety and security aspects of LNG facilities

and the related marine concerns,” the agreement:

•

designated FERC as the lead agency for environmental reviews under the NEPA

and, as such, specified that it would coordinate its reviews with DOT’s Research

and Special Programs Administration (RSPA) and the Coast Guard;

•

delineated the roles and responsibilities of each agency relative to LNG terminals

and LNG tanker operations;

•

stipulated that the agencies identify issues early and resolve them quickly;

•

specified that the agencies share information and cooperate in the inspection and

operational review of LNG facilities; and

•

specified that required NEPA reviews will meet the needs of the participating

agencies, as well as any other cooperating agencies, so that any necessary permits

could be issued concurrently with the FERC authorizations.

The agreement also specified that FERC would notify the other participating agencies as early as

possible of the start of the NEPA review of LNG facilities, including meetings with potential

applicants. FERC would then establish a schedule for the project review process and coordinate

meetings with the participating agencies.

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In addition to legislative and administrative activities, NEPA task forces have been established to

either conduct broad reviews of NEPA’s effectiveness or address NEPA implementation at

individual agencies. Three of the task forces are administrative—established within CEQ or by

executive order to improve the NEPA implementation process within the context of the existing

regulations. One task force was created by congressional committee with the intent of reviewing

NEPA’s implementation and determining if amendments to the law are needed.

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In 2002, CEQ formed a task force to review NEPA implementation practices and procedures and

to determine opportunities to improve and modernize the process. The CEQ Task Force

interviewed federal agencies; reviewed public comments, literature, and case studies; and spoke

with individuals and representatives from state and local governments, tribes, and interest groups.

In compiling its research, the CEQ Task Force received more than 739 stakeholder comments.

In September 2003, the CEQ Task Force released an in-depth report of its findings and

recommendations.44 Actions to implement the Task Force’s recommendations include developing

guidance and several handbooks on the following:

•

Integrating the NEPA process with environmental management systems.

Both the CEQ Task Force report “Modernizing NEPA Implementation” and public comments are available on the

CEQ Task Force website at http://ceq.eh.doe.gov/ntf/index.html.

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•

Coordinating NEPA with one or more major environmental consultation and

coordination requirements (e.g., § 404 of the Clean Water Act, § 106 of the

National Historic Preservation Act).

•

Establishing CEs and applying them to a proposed action.

•

Developing concise and focused EAs with adequate alternatives and mitigation.

•

Collaboratively monitoring proposals that rely on the use of CEs and EAs.

•

Identifying components of successful collaborative agreements.

•

Using programmatic analyses and their appropriate scope, range of issues, and

depth of analysis.

•

Training for interested and affected parties (e.g. decision makers, tribes,

nongovernment organizations, permit applicants, state and local governments,

and the public).

Interagency workgroups have been established to develop the handbooks and guidance. To date,

several handbooks and guidance addressing the recommendation listed above have been

produced.45

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On May 18, 2001, the President issued Executive Order 13212, Actions To Expedite EnergyRelated Projects. Specifically, agencies were directed to expedite their review of permits or “take

other actions as necessary to accelerate the completion of projects, while maintaining safety,

public health, and environmental protections.” The agencies were directed to take necessary

actions to the extent permitted by law and regulation.

To help expedite energy-related projects, the executive order established an Interagency Task

Force, housed within the Department of Energy (for administrative purposes) and chaired by the

chairman of CEQ.46 The task force includes the following members: the Secretaries of

Agriculture, Commerce, Defense, Education, Energy, Housing and Urban Development, Health

and Human Services, the Interior, Labor, State, the Treasury, Transportation, and Veterans Affairs;

the Attorney General; the EPA Administrator; the Director of Central Intelligence; the

Administrator of General Services; the Director of the Office of Management and Budget; the

Chairman of the Council of Economic Advisers; the Assistant to the President for Domestic

Policy; the Assistant to the President for Economic Policy; and such other heads of agencies as

the CEQ Chairman may designate.

The task force was directed to monitor and assist federal agencies’ efforts to expedite their permit

review process or take other necessary actions to accelerate completion of energy-related projects.

It was also charged with helping agencies create mechanisms to coordinate federal, state, tribal,

and local permitting in geographic areas where increased permitting activity is expected.

Handbooks and guidance completed to date, as well information about ongoing activities to implement the CEQ Task

Force recommendations, are available at http://ceq.eh.doe.gov/ntf/implementation.html.

See the Energy Task Force website at http://www.etf.energy.gov/. The Energy Task Force was chartered through

January 20, 2005.

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The task force developed several MOUs for certain types of energy-related projects that

incorporate common streamlining elements. For example, in May 2004, an MOU for the

Coordination of Environmental Reviews for Pipeline Repair Projects was agreed to by CEQ,

DOT, EPA, FERC, the DOE, DOI, the Department of Commerce, the Department of Defense,

USDA, and the Advisory Council on Historic Preservation.

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In September 2002, Executive Order 13274, Environmental Stewardship and Transportation

Infrastructure Project Reviews, directed federal agencies to expedite environmental reviews for

transportation projects that DOT deemed a “high-priority.” Among the criteria for project

selection are whether the projects are of national or regional significance and whether they may

be delayed by lack of federal interagency coordination. As required by the order, an Interagency

Transportation Infrastructure Streamlining Task Force, chaired by the Secretary of Transportation,

is to monitor work on expedited projects, review the list of suggested projects, and identify and

promote policies that aid in streamlining.47 The task force also includes members from federal

agencies likely to be involved in environmental project reviews. The task force has chosen a total

of 19 highway, transit, and airport projects for expedited review. A FONSI or ROD has been

issued for 12 of those projects. On August 23, 2006, DOT sent letters to the Task Force Member

Agencies announcing its intention to designate up to seven new priority projects under Executive

Order 13274.

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In April 2005, House Resources Committee Chair Richard Pombo announced the formation of a

Task Force on Improving the National Environmental Policy Act. The Task Force, chaired by

Representative Cathy McMorris, was charged with reviewing and making recommendations on

potential changes to NEPA. It held six hearings in various regions of the United States and two in

Washington, DC, to hear interested stakeholders’ experiences with the NEPA process.

On December 21, 2005, the Task Force released a draft report with its findings and

recommendations for “improving and updating” NEPA. Those recommendations include

amending NEPA itself, directing CEQ to promulgate certain regulations, and directing CEQ to

conduct studies into certain elements of NEPA’s implementation. The final report was issued on

July 31, 2006. Table A-1 (in the Appendix, below) summarizes the individual recommendations

within each group and provides comments on how those recommendations compare to existing

requirements and on selected issues associated with those recommendations.

The Task Force’s charter ended at the beginning of the 110th Congress.

The process of complying with and documenting compliance with all environmental statutes,

regulations, executive orders, and court decisions potentially applicable to a federal project is

Information about Executive Order 13274 and the transportation streamlining task force is available at

http://www.fhwa.dot.gov/stewardshipeo/index.htm.

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complicated. Even those projects with no or minor environmental impacts must demonstrate that

potential impacts to certain types of resources (i.e., public parkland, historic sites, wetlands,

threatened or endangered species and their habitat, or property in minority neighborhoods) have

been considered and that compliance with applicable requirements is documented. The perception

that compliance with environmental requirements results in extensive delays and additional costs

to the successful delivery of federal projects can be magnified when compliance with multiple

environmental laws and regulations is required (as would likely be the case with large, complex

federal projects).

CEQ provides oversight and guidance to federal agencies, but it does not enforce its regulations.

The CEQ regulations were meant to be generic in nature, with individual agencies formulating

procedures applicable to their own projects. This approach was taken due to the very different

nature of projects and environmental impacts of the various federal agencies. Due to the nature of

NEPA implementation, determining the time it takes to prepare NEPA documentation,48 assessing

the nature of delays related to NEPA, and finding remedies to those delays may be more

appropriately accomplished agency by agency.

Streamlining proposals have generated a great deal of controversy among interested stakeholders

(agency representatives, industry groups, environmental organizations, and others). Most

stakeholders agree that the process for complying with environmental requirements applicable to

complex federal projects could be implemented more efficiently. However, there is disagreement

on exactly how streamlining best can be or should be accomplished. Stakeholders, such as

industry representatives who would like to see their projects implemented more quickly, often

feel that the authority of lead agencies must be strengthened to reduce delays caused by potential

disagreements among agencies and that hard deadlines must be set and enforced. Environmental

groups are concerned that by speeding up the compliance process and reducing emphasis on

concerns of “non-lead” agencies, streamlining will have the result of weakening environmental

protections. This debate is likely to continue if additional streamlining methods are proposed by

agencies implementing their own NEPA procedures. The degree to which additional streamlining

provisions will be included in legislation enacted by the 110th Congress is unclear.

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Listed by federal agency, the following websites and CRS products provide additional

information (available as of December 6, 2007) regarding environmental compliance issues and

agency streamlining activities.

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USDA Forest Service NEPA Web page http://www.fs.fed.us/emc/nepa/.

CRS Report RL33792, Federal Lands Managed by the Bureau of Land Management (BLM) and

the Forest Service (FS): Issues for the 110th Congress, by (name redacted) et al.

Including conducting necessary research, data collection, analyses, and other activities.

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Department of Energy’s Office of NEPA Compliance and Policy Web page

http://www.eh.doe.gov/nepa/.

CRS Report RL32873, Key Environmental Issues in the Energy Policy Act of 2005 (P.L. 109-58,

H.R. 6), by (name redacted) et al.

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Department of the Interior, Office of Environmental Policy and Compliance, Natural Resources

Management Team (NEPA Information), Web page http://www.doi.gov/oepc/nrm.html.

CRS Report RL33792, Federal Lands Managed by the Bureau of Land Management (BLM) and

the Forest Service (FS): Issues for the 110th Congress, by (name redacted) et al.

CRS Report RL32244, Grazing Regulations: Changes by the Bureau of Land Management, by

(name redacted).

CRS Report RL32315, Oil and Gas Exploration and Development on Public Lands, by (name

redacted).

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FHWA’s “NEPA Project Development” Web page http://www.environment.fhwa.dot.gov/projdev/

index.asp.

FHWA’s “Relevant SAFETEA-LU Provisions” Web page http://www.environment.fhwa.dot.gov/

integ/related.asp.

CRS Report RL33057, Surface Transportation Reauthorization: Environmental Issues and

Legislative Provisions in SAFETEA-LU (H.R. 3), by (name redacted).

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Table A-1.The House Resources Committee NEPA Task Force Recommendations To Update NEPA

Summary

Recommendation Group 1—Addressing delays in the process

1.1: Amend NEPA to change “major federal action” to “significant federal action”;

amend 40 C.F.R. 1508.8 to reflect this change (this regulatory citation is likely listed

incorrectly in the report; “major federal action” is defined under 40 C.F.R. 1508.18).

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Comments

The Task Force asserts that the undefined term “major” leads to inconsistent

application of the requirement to prepare an EIS. As it is currently written, NEPA

requires the preparation of a detailed statement of environmental impacts for all

“major federal actions significantly affecting the quality of the human environment.”

CEQ regulations (40 C.F.R. § 1508.18) define a “major federal action,” in part, as

“actions with effects that may be major and which are potentially subject to Federal

control and responsibility. Major reinforces but does not have a meaning independent

of significantly.” Under current regulations, the word “major” does not refer to the

size or scope of the action, but the significance of the action’s impacts. In the 1970s,

the term “major federal action” was litigated extensively and is now fairly well-settled

to be a one-step process. It is likely that new terminology would also be litigated.

CEQ has recommended that detail regarding what constitutes a major federal action

significantly affecting the environment should be specified in individual agency NEPA

procedures. However, most agencies have not done so.

Summary

Comments

1.2: Require CEQ to promulgate regulations that would require EISs be completed

within 18 months and EAs within nine months; any analyses not concluded within that

time frame will be considered completed. Exceptions may be made by CEQ for not

more than six months for EISs or three months for EAs.

Amend NEPA to add a policy expressing the need for timely completion of NEPA

documents.

There is currently no specific time frame for the completion of NEPA documentation.

CEQ regulations (40 C.F.R. § 1501.8) specify both requirements and recommendations

with regard to time limits. In part, those regulations state that CEQ has “decided that

prescribed universal time limits for the entire NEPA process are too inflexible, Federal

agencies are encouraged to set time limits appropriate to individual actions.” The

regulations further specify that time limits shall be set if requested by an applicant,

provided that the limits are consistent with the purposes of NEPA and other essential

considerations of national policy. Further, the regulations specify that when setting

time limits, the agency may consider such factors as the potential harm for the

environment; the size of the proposed action; the degree of public need for the action,

including consequences of delay; the degree to which relevant information is known

and if not known the time required for obtaining it; and other time limits imposed on

the agency by law, regulations, or executive order.

One of the factors that influence the timing of an EIS or EA is the time it takes to

prepare analyses required under separate statutory authority. For example, to

complete an EIS, a lead agency may be required have analyses by the Department of

the Interior’s U.S. Fish and Wildlife Service (FWS) under certain provisions of the

Endangered Species Act, or from the U.S. Army Corps of Engineers under certain

provisions of the Clean Water Act. The report does not address whether additional

funding will be provided to support agencies required to provide expedited analysis for

given federal actions.

Currently, individual agencies are responsible for developing criteria to determine

whether a proposed action will require a CE, EA, or EIS. Criteria that would be

applicable to all types of federal actions, undertaken by all federal agencies, may be

difficult. For example, the Department of the Interior would likely need to use different

criteria to determine whether an oil and gas exploration project has significant

environmental impacts, compared with the criteria used by the Department of Housing

and Urban Development in determining the environmental impacts of a federal housing

project.

The cited regulations state that a supplemental EIS shall be prepared if the agency

makes substantial changes in the proposed action that are relevant to environmental

concerns, or if there are significant new circumstances or information relevant to

environmental concerns and bearing on the proposed action or its impacts. The Task

Force recommendations appear to require that both, instead of either, criteria be met

to require preparation of a supplemental EIS.

Specifically excluded from the recommended statutory amendment is 40 C.F.R. §

1502.9(c)(2), which states that agencies “may also prepare supplements when the

agency determines that the purposes of the Act will be furthered by doing so.” The

recommendations do not appear to remove this regulatory requirement.

1.3: Require CEQ to promulgate regulations that would “create unambiguous criteria”

to differentiate between CEs, EAs, and EISs. The criteria should focus on the

“significance” of an action, consistent with existing regulation and case law.

Amend NEPA to include a policy statement that the type of NEPA documentation

prepared for a given federal action will be based on the environmental impacts of that

action, not on an agency’s effort to reduce the potential for litigation (e.g., producing

an EIS when an EA is appropriate).

1.4: Amend NEPA to codify CEQ regulations (40 C.F.R. § 1502.9(c)(1)(i) and (ii))

regarding requirements for preparing supplemental EISs.

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Summary

Recommendation Group 2—Enhancing public participation

2.1: Require CEQ to promulgate regulations that would require agencies to evaluate

comments based on “the impact of the entity submitting them.” Agencies would be

directed to develop a scoring mechanism “consistent with their mission.”

2.2: Amend NEPA to codify CEQ’s provision that EISs normally be 150 pages and no

more than 300 pages for complex projects.

Comments

There are currently no provisions in NEPA or the CEQ regulations to put more

weight on comments received by one group or agency over another. CEQ regulations

(40 C.F.R. § 1503) specify requirements for inviting and responding to comments on

the draft EIS. Any federal agency that has jurisdiction by law or special expertise with

respect to any environmental impact involved in the action or which is authorized to

develop and enforce environmental standards must comment. The lead agency is also

required to request comments from appropriate state, local, and tribal agencies; the

public, particularly those persons or organizations who may be interested in or affected

by the action; any agency that has requested that it receive EISs on similar actions; and

the applicant (if there is one). The regulations specify that the lead agency has a duty to

assess and consider comments and respond to them. However, the agency is not

necessarily required to change its decision based on comments received.

In the narrative portion of the Task Force report, it is explained that the intent of this

recommendation is to assign a value to comments from stakeholders most directly

affected by a particular action. If enacted, any mechanism used to “score” comments or

determine which stakeholder are most directly affected by an action would likely be

the subject of litigation. For example, it may be difficult to assign a value to the

following parties affected by a highway construction project: property owners whose

land must be bought to begin construction, nearby residents affected by increased

noise, or highway users expected to benefit from improved traffic flow.

This proposed amendment is currently in the CEQ regulations at 40 C.F.R. § 1502.7, as

noted in the task force recommendation.

Recommendation Group 3—Better involvement for state, local, and tribal stakeholders

3.1: Require CEQ to promulgate regulations that would allow state environmental

review requirements, which are functionally equivalent to NEPA’s, to satisfy NEPA

requirements.

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CEQ regulations (40 C.F.R. § 1506.2) specify procedures to eliminate duplication with

state and local procedures. Among other requirements, the regulations specify that

“Where State laws or local ordinances have [EIS] requirements in addition to but not

in conflict with those in NEPA, federal agencies shall cooperate in fulfilling these

requirements as well as those of federal laws so that one document will comply with all

applicable laws.” The CEQ regulations are silent on tribal NEPA procedures. The

recommendations also do not address them.

Summary

Recommendation Group 4—Addressing litigation issues

4.1: Amend NEPA to create a policy statement regarding litigation that would

recognize the role of litigation as an enforcement tool, but point out that it should be

used only in limited cases where there has been a clear demonstration that an agency

made a decision without using the best available information and science; an aggrieved

party was involved throughout the NEPA process in order to have standing to sue;

and that a 180-day statute of limitations be established.

Require CEQ to promulgate regulations that would clarify how the policy declaration

would be implemented.

4.2: Amend NEPA to require CEQ to provide litigation guidance to agencies; require

CEQ to become a clearinghouse for monitoring and analyzing the effects of court

decisions.

Comments

What constitutes best available information and science for a given action would likely

differ from project to project. There are currently no definitions for such terms in

CEQ regulations or from existing case law, and thus they would likely be litigated if

implemented.

CEQ regulations also specify public involvement criteria for actions requiring an EIS (40

C.F.R. § 1506.6) and require agencies to involve environmental agencies, applicants, and

the public, to the extent practicable, in the preparation of an EA (40 C.F.R. § 1501.4(b)).

There are no public involvement criteria specified for CEs. If a party to a citizen suit

must demonstrate that it was involved throughout the NEPA process, agencies may be

required to develop specific public involvement criteria for EAs and CEs.

Neither NEPA nor the CEQ regulations specify criteria regarding standing or specify a

statute of limitation on citizen suits. Decisions regarding standing are generally made by

the courts based on constitutional or judicial grounds; with regard to a time limits on

legal actions, courts have turned to the statute of limitations used for judicial review

under the Administrative Procedure Act (28 U.S.C. § 2401), which mandates broadly

that civil actions against the United States must be filed within six years after the right

of action first accrues.

CEQ historically performed this function and does so currently, as resources allow.

Recommendation Group 5—Clarifying alternatives analysis

5.1: Amend NEPA to require analysis of only “reasonable alternatives.”

Require CEQ to promulgate regulations that would specify that “reasonable

alternatives” required to be analyzed should include only those that are economically

and technically feasible (as supported by feasibility and engineering studies).

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Current CEQ regulations (40 C.F.R. § 1502.14) specify that all “reasonable

alternatives” to a proposed action be considered. CEQ guidance interprets reasonable

alternatives to include “those that are practical or feasible from the technical and

economic standpoint and using common sense, rather than simply desirable from the

standpoint of the applicant.”a

With regard to the proposed regulatory requirement regarding feasibility and

engineering studies, it is unclear whether the preparation of such studies would be an

additional requirement under NEPA.

In evaluating and selecting its final alternative, NEPA does not require the agency to

select the least environmentally harmful alternative (e.g., NEPA would not require an

agency to select a more costly project alternative even though it has less significant

environmental impacts compared to another).

Summary

Comments

5.2: Amend NEPA to specify that alternative analysis must include a consideration of

the environmental impacts of the “no action alternative” and require an agency to

reject this alternative “if, on balance, the impacts of not undertaking a project or

decision would outweigh the impacts of executing the project or decision.”

The task force report appears to interpret the existing regulations as requiring

agencies to only “list” the no action alternative in an EIS, with no corresponding

analysis. However, CEQ regulations (40 C.F.R. § 1502.14) and CEQ guidance do

require analysis of a “no action” or “no change” alternative. CEQ guidance specifies

that such analysis is required to demonstrate the environmental impacts of continuing

with the present course of action or taking no action. Currently, agencies may use the

no action alternative analysis as a baseline against which they can measure the impacts

of other alternatives under consideration.

This recommendation appears to add a substantive element to NEPA

implementation—it species criteria under which an alternative must be rejected. As

NEPA has been interpreted, it is a tool to assist an agency in the decision-making

process, but it does not dictate the outcome of that process. For example, NEPA does

not require an agency to elevate environmental concerns above others. If the adverse

environmental effects of the proposed action are adequately identified and evaluated,

the agency is not constrained by NEPA from deciding that other benefits outweigh the

environmental costs and moving forward with the action. That is, an agency is not

currently required by NEPA to choose or reject a project alternative based on its

environmental impacts.

CEQ regulations require an EIS or ROD to include a discussion or analysis of measures

that may be taken to mitigate the environmental impact of a proposed alternative (40

C.F.R. §§ 1502.14(f) and 1502.16(h)). However, it is not required that mitigation

measures discussed in the NEPA documentation actually be implemented, only that the

environmental impacts of an action be considered if such measures were implemented.

CEQ guidance is not enforceable. It is unclear whether CEQ guidance directing

agencies to require a “mitigation guarantee” would be enforceable.

5.3: Require CEQ to promulgate guidance to make environmental mitigation proposals

binding on the agency recommending the action.

Amend NEPA to “recognize that mitigation proposals that a [sic] utilized as part of

the decision-making process must be implemented.”

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Summary

Recommendation Group 6—Better federal agency coordination

6.1: Require CEQ to promulgate regulations that would encourage more consultation

with interested stakeholders. Those regulations “will focus on creating a mechanism

that includes all appropriate stakeholders with particular emphasis on not including

‘fringe’ elements that would only seek to delay the decision-making process.”

6.2: Amend NEPA to clarify the responsibility of lead agencies to charge that agency

with “the responsibility to develop a consolidated record for the NEPA reviews, EIS

development, and other NEPA decisions.”

Recommendation Group 7—Additional authority for CEQ

7.1: Amend NEPA to direct CEQ to “control NEPA related costs” and provide CEQ

with statutory authority to do so. Direct CEQ to bring recommendation to Congress

for cost ceiling policies.

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Comments

Agency and public participation requirements are currently specified in CEQ

regulations for projects requiring an EIS. When determining the scope of issues to be

addressed and identifying the significant issues related to a proposed actions, CEQ

regulations (40 C.F.R. § 1501.7) require agencies to “invite the participation of affected

Federal, State, and local agencies, any affected Indian tribe, the proponent of the action,

and other interested persons (including those who might not be in accord with the

action on environmental grounds).” CEQ regulations (40 C.F.R. § 1506.6) also specify

that agencies must “make diligent efforts to involve the public in preparing and

implementing their NEPA procedures” and how such efforts should be made.

The CEQ regulations (40 C.F.R. 1501.4(b)) specify that if an action does not require an

EIS, the agency shall involve environmental agencies, applicants, and the public, to the

extent practicable, in preparing EAs. Otherwise, public participation requirements for

projects requiring an EA or CE are left largely to the discretion of the lead agency. It is

unclear from the task force report whether the recommendation would apply to EAs

and CEs.

It is likely that attempts to define “fringe elements” in the NEPA process or to identify

a stakeholder as one that is seeking to delay the decision-making process would be

litigated.

With regard to EIS development, current CEQ regulations (40 C.F.R. § 1508.16) define

“lead agency” as the agency or agencies preparing or having taken primary

responsibility for preparing an EIS.

The task force report does not include details regarding what constitutes “other NEPA

decisions” for which a lead agency would have responsibility.

There are currently few data on NEPA-related costs. They may be difficult to

determine because it is difficult to isolate costs or project expenses associated

with NEPA. For example, environmental analyses may be required pursuant to

separate statutory requirements (e.g., the Clean Water Act, Clean Air Act, Endangered

Species Act).

only

Summary

Recommendation Group 8—Clarify the meaning of “cumulative impacts”

Comments

8.1: Amend NEPA to clarify how agencies would evaluate the effect of past actions for

assessing cumulative impacts. Add a provision to establish that an agency’s

“assessment of existing environmental conditions is the appropriate methodology to

account for past actions.”

CEQ regulations (40 C.F.R. 1508.7) define cumulative impacts as those that “can result

from individually minor but collectively significant actions taking place over a period of

time.” Such impacts include those which result from the incremental impact of the

action when added to other past, present, and reasonably foreseeable future actions.

In looking at the impact of past actions, CEQ guidanceb specifies that a review of such

actions is required to the extent that the review informs agency decision making. The

analysis of past actions may identify trends that could influence the effects of current

actions. CEQ’s interpretation is based, in part, on previous court decisions. Changes to

that interpretation would likely be litigated as well.

CEQ’s interpretation of what constitutes “reasonably foreseeable” future actions is

based, in part, on previous case law. Changes to the regulatory definition would likely

be litigated. Further, new terminology such as “speculative actions” would likely be

litigated.

8.2: Require CEQ to promulgate regulations that would modify existing regulations

(40 C.F.R. 1508.7) to clarify which types of future actions would be considered

“reasonably foreseeable” when conducting cumulative impact analysis. The regulations

should “make certain that speculative actions are not ‘reasonable’ within the context

of cumulative impacts.”

Amend NEPA to instruct federal agencies to employ “practical considerations to

assesses the practicality of a future action’s impacts on the environment.”

Recommendation Group 9—Studies

9.1: Require CEQ to conduct studies to determine or evaluate: how NEPA interacts

with other federal environmental laws; the amount, if any, of duplication and overlap

in the environmental evaluation process; and potential methods to address overlaps

among federal laws.

9.2: Require CEQ to conduct a study of federal agency NEPA staffing issues.

9.3: Require CEQ to conduct a study of NEPA’s interaction with state “mini-NEPAs.”

The Task Force recommendations do not discuss how much funding, if any, CEQ

would receive to conduct these studies.

The Task Force recommendations do not discuss how much funding, if any, CEQ

would receive to conduct these studies.

The Task Force recommendations do not discuss how much funding, if any, CEQ

would receive to conduct these studies.

Source: Congressional Research Service (CRS) review of recommendations in the House Resource Committee’s Task Force on Improving the National Environmental

Policy Act, Initial Findings and Draft Recommendations, Dec. 21, 2005.

a. Council on Environmental Quality, “Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act Regulations,” 46 Fed. Reg. 18,026 (Mar. 23,

1981), available at http://ceq.eh.doe.gov/nepa/regs/40/40P1.htm, as of Aug. 24, 2006.

b. Council on Environmental Quality, “Guidance on the Consideration of Past Actions in Cumulative Effects Analysis,” June 24, 2005 available at http://ceq.eh.doe.gov/

nepa/regs/guidance.html, as of Aug. 24, 2006.

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