CRS InFocus Report: 'Environmental Reviews and the 118th Congress'

Kristen Hite produced this CRS InFocus Report (updated 19 September 2023): 'Environmental Reviews and the 118th Congress'.

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Click on Table 1 (two parts) to enlarge it (or read them in the PDFs).

Overview of the Review Process Under the National Environmental Policy Act
The National Environmental Policy Act (NEPA, 42 U.S.C. § 4321 et seq.) mandates environmental review of many agency actions. NEPA requires that federal agencies consider potential impacts of their actions that may affect the human environment. If a major federal action could result in significant impacts, NEPA requires the preparation of an Environmental Impact Statement (EIS) that analyzes effects of the proposed action and alternatives to that action. An agency may prepare an Environmental Assessment (EA) to decide whether to prepare an EIS or instead issue a Finding of No Significant Impact. An agency need not prepare either document if a proposed action is unlikely to have a significant impact and falls under a categorical exclusion—a type of activity that an agency has already determined does not usually result in a significant impact—or one that Congress has excluded by statute. Categorical exclusions apply to the vast majority of agency decisions. Agencies typically issue regulations and guidance under both NEPA and their specific statutory authorities to address environmental review requirements.

NEPA and Permitting Decisions
NEPA reviews often contemplate a wide range of potential impacts early in the decisionmaking process. A draft EIS, for example, must include a list of all federal permits, licenses, and other authorizations (generally described here as “permitting decisions”) that must be obtained to implement the proposal. Examples of laws that impose such requirements are the Clean Water Act, Endangered Species Act, and National Historic Preservation Act.

Several laws address agency coordination of environmental reviews and permitting, although requirements, time frames, and processes can vary across agencies and authorities. NEPA itself establishes lead agencies, while Title 41 of Fixing America’s Surface Transportation Act (FAST-41) contains permitting coordination requirements for “covered projects.” Those projects include federal infrastructure projects with costs over $200 million likely to require multiple federal permits and/or EISs. FAST-41 establishes two-year completion goals and a unified schedule for environmental reviews of such projects.

NEPA in the 118th Congress
The 118th Congress has seen more than 100 bills referencing NEPA since January 2023. Among these is the Fiscal Responsibility Act of 2023 (P.L. 118-5), which amended NEPA. Table 1 provides a summary of selectNEPA provisions affected by P.L. 118-5. While proposed environmental review provisions under consideration for the 118th Congress are too varied to offer a comprehensive summary, the following matters appear in multiple bills:

Single document: As amended by P.L. 118-5, NEPA requires a single document “to the extent practicable” if multiple agencies are involved in an environmental review. Some proposals would require more coordination, such as a default single document incorporating multiple agencies’ analysis and/or permitting decisions for a given project.

Time limits: P.L. 118-5 created judicially reviewable time limits for environmental reviews, including two years for a full EIS and one year for an EA. Some bills would impose other time limits such as allowing two years for overall permitting decisions or requiring agencies that miss a deadline to pay a project sponsor.

Inter-agency collaboration and cooperative federalism:Many permitting decisions involve states, tribes, or local authorities. While some proposals would preempt existing state authority for specific decisions (e.g., transmission line siting), others encourage states, tribes, and local authorities to jointly undertake reviews and permitting decisions with federal agencies. P.L. 118-5 expressly authorizes state, tribal, or local agencies to serve as joint lead agencies for coordinating on environmental documents and permitting review schedules.

Community engagement and public comments: Many environmental reviews require an opportunity for public comment. Some proposals would extend public comment periods or require a new community impact assessment. Others would set time limits that could affect agencies’ abilities to solicit, consider, and respond to comments before a final decision.

Judicial review: Typically, the Administrative Procedure Act (APA, 5 U.S.C. § 551 et seq.) governs judicial review of agency decisions. The applicable statute of limitations provides six years to file a claim. Some proposals would provide shorter time limits to file a challenge to NEPA analysis, would exempt decisions from suit if they rely on categorical exclusions, would require a plaintiff to have first raised the matter with the agency, and would direct courts to expedite decisions. P.L.118-5 also added a right of review under NEPA itself for a project sponsor to enforce an EA or EIS deadline.

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