2023 NEPA amendments

More Unforced Errors in the 2023 NEPA Amendments

Bluntly speaking, the statute is a mess.

When the 2023 amendments to NEPA passed as part of the debt ceiling bill, I wrote a series of blog posts about the drafting errors. It turns out that I missed some, as I discovered when working on the new edition of my environmental law casebook.  They really aren’t all that subtle, and it’s hard …

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The Statutory EIS Process: A Primer

Last year, Congress tried to codify NEPA law. Here’s how the process is supposed to work.  

Because NEPA’s discussion of environmental impact statements (EIS) was very brief, the requirements and procedures were elaborated by courts and  guidance from a White House office. That changed in 2023, because  much of the subject is now covered explicitly by new statutory language.. Thus, NEPA is a bit less of a “common law” subject than …

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A Big Year on Legal Planet

Planet Earth evolving

Here are the 12 most popular topics in environmental law and climate policy on Legal Planet based on our most-read posts from 2023.

It’s an understatement to say that 2023 was a transformative year for the U.S. climate movement. We saw rapid implementation of landmark federal climate laws, a series of big actions on methane emissions, a deal on Colorado River water usage, and bigger-than-expected climate victories in Sacramento. EPA’s control of toxic chemicals was tested, the U.S. …

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Finetuning the New NEPA Rules

CEQ’s proposal is good, but it could be made even better.

In Monday’s post, I praised the CEQ’s proposed new NEPA regulations. They should streamline the process without compromising protection of the environment or environmental justice.  I do have some suggestions for improvement, however, which are detailed below. Beyond my specific suggestions, I also hope that CEQ would view the new NEPA regulations as the beginning …

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The NEPA Amendments in Nine Blog Posts

Surveying the legal problems of the biggest NEPA changes in the past fifty years.

On June 5, President Biden signed the debt ceiling bill, which provides the first significant rewrite of NEPA since it was passed over fifty years ago.  In a series of blog posts, I’ve explored some of the legal issues raised by the amendments. My goal has been highlighting problem areas rather than providing anything like …

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NEPA 2.0 and Transmission Projects

Will the new NEPA provisions speed approval of urgently needed projects?

In terms of the energy transition, the most important question about the recent NEPA amendments is whether they streamline permitting for transmission projects. The answer is complicated. We can divide transmission projects into two groups. The first group consists of transmission projects where federal involvement is limited to specific segments, such as stream crossings requiring …

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Having the Fox Guard the Henhouse?

Delegating Environmental Reviews to Project Sponsors

One of the most important provisions, of the new NEPA law, § 107(f), allows the lead agency to delegate preparation of environmental reviews to project applicants. There are unsettled questions about when this provision applies and how it interfaces with other parts of NEPA. There are clear conflicts of interest in assigning this role to …

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Centralizing Environmental Reviews under NEPA’s New Section 107

Sec. 107 is the key permitting reform applying to major projects. Will it work?

The 2023 Amendments to NEPA tweak current regulations in various ways in the name of permitting reform. Those changes make it easier to exempt smaller projects or cover them with programmatic impacts statements.  The key issue, however, is going to be the effectiveness of new section 107, the main provision aimed at large-scale projects like …

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CEQ and Permitting Reform

The enactment of NEPA 2.0 presents a golden opportunity for the agency.

In the recent debt ceiling law, Congress extensively revamped NEPA, the law governing environmental impact statements. An obscure White House agency, the Council on Environmental Quality (CEQ), will have the first opportunity to shape the interpretation of the new language.  Much of the language in the new law is poorly drafted or vague, making CEQ’s …

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The Drafting Puzzles of NEPA 2.0

In an effort to streamline NEPA, Congress may only have made parts of it incomprehensible.

Shortly after Biden signed the new NEPA rewrite as part of the debt ceiling law, I wrote a blog post about a major drafting glitch at the heart of the new provisions. Today, I’d like to follow up with more examples. This poor drafting could really hobble implementation of the new provisions. We live in …

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