Much Ado About NEPA

For the NEPA nerds among us…. Fron Brownstein, a law firm.

Much Ado About NEPA

The Fiscal Responsibility Act’s Revisions to the Iconic Statute Largely Codify Existing Interpretation and Practice

On May 31, 2023, the House of Representatives advanced the Fiscal Responsibility Act of 2023 (“FRA”), which would suspend the federal debt limit until Jan. 1, 2025. The FRA passed the Senate last night and will be signed into law by the president. Though largely focused on federal spending, the legislation also amends the National Environmental Policy Act (NEPA) of 1970. The amendments are notable because the statute has rarely been revised in its 53-year history. Because the amendments largely track existing regulations and federal case law interpreting NEPA, the modifications will not significantly change how NEPA is applied in practice. However, by codifying the current regulations, Congress entrenches the provisions, providing project proponents with greater regulatory certainty.

8 thoughts on “Much Ado About NEPA”

  1. You can’t get more low effort in a low effort Smokey Wire post… If I was allowed to post to this site I wouldn’t be anywhere near as negligent and sloppy as you. Did you spend more than 60 second posting this? What an insult to all the thoughtful in-depth work that SmokeyWire is known for.

    You literally stole the title of their post and then stole their first paragraph and then too lazy to even provide the link to it so we can read more? Or were you trying to cover up the fact that other than the less than dozen words you wrote you just copy & pasted the whole thing?

    Come on Steve… Surely you want to be more credible in your online presence? The lack thereof only strengthens your close minded agenda to eliminate environmental regulations at scale.

    And to clarify what the word “Amend” according to means: “make minor changes in (a text) in order to make it fairer, more accurate, or more up-to-date.”

    But truth is they’ve not amended anything only undermined and further wittled away at their goal of nullification to make NEPA’s environmental review less fair and less up to date as much as they possibly can.


    The FRA provides more specificity regarding the elements of NEPA reviews, including the following revisions to 42 U.S.C. § 4332:
    1) Analysis limited to reasonably foreseeable environmental impacts;
    2) Alternatives must be reasonable;
    3) Scope of required analysis narrowed;
    4) Data reliability.

    In other words this language directly attacks and seeks to nullify the long game of the analysis of cumulative impacts, especially related to climate change, while also trying to exclude any data the opposition provides that may get in the way of rubber stamp blanket approval without meaningful analysis.

    What’s more it also seeks to declare all alternative actions to be reviewed as unreasonable in order to strengthen the lawlessness of proposals that fail to look at alternatives so only one proposal gets reviewed and nothing else is considered / compromised on because to actually think critically and creatively is not as profitable as ensuring regulators and judges are not able to think at all about any of it and either they approve it or don’t approve it, which is the whole Judges encouraged lawmakers to create NEPA in the first place.

    What’s more these latest weasel words are designed to ensure that there is a stronger legal basis to eliminate opposition evidence submitted into record as beyond the scope and not relevant which runs counter to what the courts expect from NEPA when it comes to due process and due diligence prior to judicial review.

    Yet again, this level of stupid will bring more cases to court not less and the judges are very well aware that these changes increase their case load rather than decrease it because the amendments make NEPA less fair, less accurate, and less able to stay up to date with our rapidly deteriorating environment..

    • Negligent and sloppy? Deane, you make much ado about nothing. I posted the excerpt and link so folks like you could read the article and respond. I look forward to thoughtful, constructive comments.

      • I guess what you put into it is what you get out of it, right Steve?

        I mean go look at all the places that were ancient forest before you got hired in your career and go look at how lost and arid it is because of your career ambitions and how you got more out of it than you left behind and how that will will be true for many, many centuries after your short human lifespan has run its course…

        As in, I put a great deal of time with lots of words and references on Smokey wire. That’s the nature of thoughtful and constructive writing.

        Of course we all know that here on Smokey Wire anyone who puts industry and exploitation beneath the actual ecosystem and how it functions and its need for protection is an anathema to all that is considered meaningful when it comes to “thoughtful, constructive comments”

        Or rather, as the late great E.O. Wilson: “Destroying rainforest for economic gain is like burning a Renaissance painting to cook a meal.”

        Or as FDR once said: “The Nation that destroys its soil destroys itself.”

        Or as the still living Sharon Gannon once said: “Human beings have been waging war and destroying the environment for long time. Just because it has been going on for a long time and become an unquestioned habit, does that mean it should be allowed to continue?”

        • Example one of many, but hey, I’m Anon and evil and of no worth on this board.

          Words and references that are cherry picked and mixed in with vitriol and agendas don’t get far. More bees with honey than vinegar and all.

    • Deane, the point here is to critique the article. Not to critique Steve for posting it. Do you understand the difference?

  2. “Because the amendments largely track existing regulations and federal case law interpreting NEPA, the modifications will not significantly change how NEPA is applied in practice.” That is probably the most likely outcome, but I would hedge on “existing regulations” because they are from 2020 and represent some changes from traditional practices so don’t have a track record in court (yet).

    I also agree with “We expect the new and amended statutory language to prompt future legal challenges both by environmental groups and project proponents.”

    But what was really interesting to me is:
    “Section 108 states an agency can rely on a final programmatic environmental document for five years without additional review so long as there are not “substantial new circumstances or information about the significance of adverse effects that bear on the analysis.” The agency may rely on the programmatic document beyond the five-year limit if it reevaluates the analysis and underlying assumptions.”

    Five years was always a “rule of thumb” for longevity under NEPA, but I don’t think most people gave much thought to how that applies to long-term, “programmatic” decisions like forest plan EISs, and the Supreme Court even said supplemental EISs aren’t needed for forest plans. This change in the law explicitly does apply require reanalysis, though not necessarily an SEIS, but I’m not sure what else it would be.

    The 2012 Planning Rule removed a requirement for a 5-year review of forest plans, but this could reinstate that to some extent. (And what about equally long-term and programmatic “condition-based” “project” NEPA?)


Leave a Comment