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1 [1] (May 31, 2023)

handle is hein.crs/govelus0001 and id is 1 raw text is: Congressional Research Service SInforming the legislative debate since 1914 May 31, 2023 Environmental Reviews and Permitting: Pending Legislation Overvkew of the Review Process Under the National E nviron mental Policy Act The National Environmental Policy Act (NEPA, 42 U.S.C. § 4321 et seq.) mandates environmental review of many agency actions, including issuing permits. NEPA requires that federal agencies consider the 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 that is, if the action is a type of activity that an agency has already determined does not usually result in a significant impact. Categorical exclusions apply to the vast majority of agency decisions. N E PA and Permitting Decisions NEPA reviews often contemplate a wide range of potential impacts early in the decisionmaking process. An agency must include in a draft EIS a list of all federal permits, licenses, and other authorizations that must be obtained in implementing the proposal. Examples of laws that impose such requirements include the Clean Water Act, 33 U.S.C. § 1251 et seq.; Endangered Species Act, 16 U.S.C. § 1531 et seq.; and National Historic Preservation Act, 54 U.S.C. § 300101 et seq. Title 41 of Fixing America's Surface Transportation Act (FAST-41, 42 U.S.C. §§ 4370m-4370m12) contains additional 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. Requirements, time frames, and processes can vary across agencies and authorities. Agencies typically promulgate regulations under both NEPA and their specific statutory authorities to address review requirements. Applicable state, tribal, and local requirements may also be included. Considerations for the I I 8th Congress The 118th Congress has seen more than 60 bills referencing NEPA since January 2023. The Fiscal Responsibility Act of 2023, H.R. 3746, contains provisions related to NEPA and permitting, including some provisions originally introduced in other bills. Table 1 compares the provisions of H.R. 3746 to existing law. While proposals related to NEPA vary, many would address the following issues: Single document: Existing NEPA regulations set a goal for agencies to develop draft EISs concurrent with and integrated with environmental impact analyses required by other federal laws and executive orders. Some proposals seek to require more collaboration, including a default requirement of a single document that incorporates multiple agencies' analysis and/or permitting decisions for the same project. Some also set page limits on documents. Time limits: Some proposals seek to impose statutory time limits for environmental reviews, including two years for a full EIS and one year for an EA. Others impose a two-year limit for overall permitting decisions. NEPA regulations contain similar goals, although they allow senior agency officials to extend deadlines as necessary. Some proposals require an agency that misses a deadline to pay a project sponsor. Others are silent on the consequences. Inter-agency collaboration and cooperative federalism: Many permitting decisions fall outside federal jurisdiction. States, tribes, and local authorities can play important roles in permitting decisions. 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. Community engagement and public comments: Many environmental reviews require an opportunity for public comment during the review process. Some proposals would extend public comment period times 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 categorical exclusions from suit, would require a plaintiff to have first raised the matter with the agency, and would direct courts to expedite decisions.

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