Dan Farber Weighs in on NEPA Permitting Reform

We had a good discussion here with LM and Jon, but I thought I’d post this one.

UPDATE: I heard back from Dan Farber on the “do these changes apply to NEPA for everything” question.. here is what he said.

 So far as I can tell, the NEPA-related provisions are all amendments to NEPA itself and aren’t limited to particular types of projects. Most of the changes seem pretty consistent, however, with caselaw and CEQ regs. So except in a few places, I don’t think they’re going to have substantive impact. The deadlines, page limits, and lead-agency requirements may make a difference at the operational level, however.

Here’s Dan Farber of Berkeley Law’s take .. he seems pretty level-headed on this, which is perhaps to say, I tend to agree with him :).

The original version of NEPA is very brief. It lacks definitions or any indication of the process to be used in deciding whether a project requires an impact statement. Over the years, those gaps have been filled in by a combination of court decisions and guidelines from the Council on Environmental Quality (CEQ) in the White House. In general, the FRA version of the Builder Act writes in the statute the rules worked out by courts and the CEQ.

There are some exceptions, however, where the changes may be more significant. Here are some significant changes that have been identified in discussions by legal scholars:

  • Extraterritoriality: No environmental review is required for actions or decisions with impacts entirely outside the U.S., such as funding a dam in another country. This appears to be a more rigid standard than courts have applied.

  • A somewhat more restrictive rule about how much control a federal agency has to have over a project before an environmental review is required.

  • A government agency considering a project can outsource preparation of the environmental review documents to the project sponsor, though the agency is required to exercise oversight. In practice, this would mean having the project sponsor pay for an independent consulting firm to do the work.

  • Page limits 150 or 300 pages depending on complexity and deadlines (2 years) for environmental impact statements. (Who uses page limits anymore instead of word counts?) One effect could be to discourage the use of graphics and maps that might actually make the statement much more understandable to the public.

  • Providing for appointment of a lead agency to be responsible for the impact statement when multiple agencies have jurisdiction over parts of the project. This is probably a good idea, but probably could have been implemented administratively even without a statute.


How significant are the NEPA changes?

On the one hand, the NEPA provisions of the FRA seems fairly innocuous, and it may be helpful to have the rules clarified by statute. That provides a clear anchor point for judicial decisions and puts some limits on how much particular presidential administrations can play games with the statute. Thus, putting the rules into statutory form provides a bit of protection against the likes of Trump or Alito trying to gut longstanding practices.

SF- One person’s “playing games with the statute” or “gut longstanding practices” could be another’s “clarifying” such as BLM’s proposed rule and MUSYA. It’s all in your perspective..

On the other hand, it’s not clear how much the NEPA changes will actually speed up permitting. Deadlines for agencies to act sound good but experience has shown they’re very hard to enforce. The page limit is meaningless, since all the extra stuff will just go into the appendices.

In terms of speeding up permitting, the most promising change may be the ability to get applicants to pay for outside experts to draft the impact statement. The environmental review process is often slow simply because agencies don’t have the budget or staff to get it done faster. Outsourcing could really speed things up, but it will be crucial for agencies to exercise serious oversight. Otherwise, companies will find friendly consultants to paper over any environmental problems.

Overall, the NEPA provisions don’t seem to pose major problems. Or at least, none that we’ve been able to find so far. From an environmental perspective, that’s probably about the best we could expect from the fraught negotiations over the debt ceiling.


My thoughts..

It seems like agency NEPA practitioners were not involved in many of these policy discussions. Wouldn’t they be the first people you would ask for ideas? Oh well.

I agree with Dan that page limits are pretty meaningless.

Don’t we already have the ability to have applicants pay for NEPA? I seem to remember a project (I’m sure Mike remembers) I used to call “Reasonable Access for Unreasonable People” with TetraTech as the contractor.  In my mind, and with decades of experience, it’s much easier and less time-consuming  to review someone else’s work than to do the initial work yourself. As long as the agency calls the shots on analysis, that should be the determining factor.  As I recall, the applicant was not allowed to communicate directly with the contractor.. anyway perhaps someone out there has more experience.  My point being 1) maybe that’s not as new as some people think and 2) maybe there are different ways of doing it, some that have worked out better than others.

It’s great to make a lead agency more accountable, if that would actually work.. except that when agencies disagree.. will only the lead agency have skin in the game?

It continues to sound as if these NEPA changes are more general than just energy projects, so I’m trying to find out more.

It also seems to me like OGC and FS NEPA folks have generated something on “what this means for the FS” which would be much better than my ramblings.. so if you run across this, please email me.

Finally.. a bit of cross-agency context.. one agency of DOI, the BOEM, used an EA for a 30 million acre swath of the Gulf of Mexico for wind energy, according to Greenwire.

5 thoughts on “Dan Farber Weighs in on NEPA Permitting Reform”

  1. I spend most of my time doing regulatory document review. So much of the information provided is unnecessary when it is written by the USFS. It’s a cut and paste dump of info from every past NEPA doc with a related proposed action with related issues. In contrast, when documents are written by consultants they are often incomplete.

    For the outsourced NEPA, the consultants often have a low-level person slapping together a NEPA doc to meet billable hours. They are going to do the bare minimum, which would be fine if the info was the right barebones stuff, but it’s often not. For the feds to get a good doc, they must work hand in hand with the consultant. It still takes a lot of federal staff involvement and a good federal project manager is a key to getting it right. Also, the price of paying a consultant to do the work is insane ($90-150/hour) and the person doing most of the work is only getting $25/hour. I don’t see how it is cost efficient to outsource the work, it just happens to be convenient when federal agencies have been short-staffed for the past 20 years.

    There have been a ton of Federal retirees the past 4 years. The lost institutional knowledge is immense. We’ve recently been able to staff up, but the new staff are often fresh out of graduate school and lack experience. Many have high potential, but they need years of on the job training to do the complex work being asked of them. Instead, they are given short timelines, huge workloads, and are put under high pressure to get it done. The work output is less than spectacular under these circumstances and it’s not going to end well.

    • A. I think you’re getting at the same thing I’m getting at.. I think at one time there was a paper on “best practices for contractor NEPA” and there were people sharing experiences on how it worked well. For example, telling the contractor “we expect you to use this info”.. and for the 15th fuel treatment project in the same area, perhaps cut and paste is appropriate in terms of reducing unnecessary time?
      And doing NEPA is not the most fun thing for many specialists. There’s a great deal to parse out.

  2. In the case of the “Reasonable Access for Unreasonable People” project (excellent name Sharon), the only communication between the project proposer and the NEPA consultants was to be for billing purposes (the proponent paid for the cost of the analyses, including Forest personnel). Unfortunately, the communication went beyond that including the consultant asking the project proposer for tickets to a pro football game. The other thing that happened with that project proposal that never ends, is that with each new NEPA iteration, the billionaire proponent put pressure on the Forest directly, through the WO and through politicians to speed up the process. That, along with also pressuring the Forest on specific NEPA details resulted in EIS’s that have lost three times, so far, in court. There are many valid reasons for using contractors to write NEPA analyses and by limiting communication between the contractor and the proponent the appearance of influence by the proponent is reduced. Unfortunately, in this case, there were multiple violations of the communication directive.

    • Mike, I don’t think it’s “pressuring the forest to be faster” nor the lack of capability of the Forest staff folks. People with really good lawyers don’t want it. So it’s a battle between the haves and the haves, with the Forest caught in the middle. See also BLM coal and oil and gas projects.

      • I did not mean in any way to suggest there was a lack of capability of Forest staff and I agree good lawyers and a sympathetic judge played a role in two decisions and a settlement. But without going into details on this forum, I firmly stand by what I said. Forest staff, including me, expressed our concerns. The decisions were predictable.


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