Top 20 ideas for conservation in Senate NEPA legislation
by Tim Male, Executive Director of EPIC.
This post was originally posted on LinkedIn. View the original post here.
Senator Tom Carper (D-Delaware) and co-sponsors released a NEPA permitting reform bill on May 18 that creates a new high mark for comprehensive changes to NEPA that will improve reviews for conventional industries and especially support the review and permitting of projects that are critical to an economy-wide transition to clean energy. It also includes many provisions that will make nature-based solutions appropriately easier to review. The bill is full of provisions that make NEPA more responsive and nimble, more likely to reflect early community engagement and priorities, and far more likely to avoid and offset significant impacts of projects and thus lead to better projects that will often have no net significant adverse effect at all.
The bill includes many other provisions on transmission, critical minerals, environmental justice, and the federal infrastructure permitting council, but this is a quick review of what I think are the most important proposed changes for nature, climate adaptation, environmental justice and conservation.
The bill’s reforms to programmatic environmental reviews are important and strategic. They eliminate the need for ‘tiered’ environmental impact statements for projects within a program in many circumstances. For example, it states that agencies “shall rely” on programmatic reviews “without the need for further analysis or public review” as long as there are no new circumstances or information. This is helpful and a very positive change. It also clarifies that an environmental assessment or categorical exclusion may suffice for any additional analysis of projects within the program. This could cover forest management projects, for example, within a national forest whose land management plan goes through a programmatic EIS.
The bill gives substantial, welcome, attention to mitigation and offsetting. It specifically calls out mitigation banking and third-party mitigation as approaches that can negate a significant effect and lead to a ‘net’ finding of no significance. This is the first recognition in legislation that I can think of in which the role that compensatory mitigation can play in eliminating the need for an EIS gets attention.
It specifically allows an EIS to be avoided if compensatory mitigation is enforceable, durable, monitored, and meets performance standards and allows significant effects to be balanced with positive ones yielding an outcome that doesn’t have a net significant adverse impact.
It formally recognizes mitigation banking, in lieu fee and advance mitigation and describes those mechanisms as producing favorable outcomes when done in advance of project impacts. Unfortunately it doesn't go straight out and say this is a preferred approach as President Obama's earlier executive action did. Nonetheless, recognizing the role of compensatory mitigation with such detail marks a major turn in the role of NEPA in driving offsets and leaving nature and public resources no worse off after projects are built.
The bill would require agencies to consider positive impacts of projects on the environment, including the positive effects that won’t happen if the project doesn’t get built. This is an excellent shout out to renewables projects that prevent long-term climate damage, extinction and ecosystem loss. This has been a priority for me for the last few years. It is a small but important step in using environmental reviews to champion instead of always diminishing important infrastructure work for nature.
It requires the agencies to develop Categorical Exclusions for projects that have only benefits and no significant adverse effects – insignificant adverse effects are okay. We strongly support this language. Importantly, it names ecological restoration, invasive species control and habitat improvements as fitting this description (although it includes an unhelpful limitation of this to public-land and water locations). CEQ can also establish other categories of environmentally beneficial projects for which agencies would then have to develop Categorical Exclusions.
There is a new category of ‘Climate Change Mitigation or Resilience Projects” that gets a special process and attention. The definition of the category is limited, but includes projects that create resilience to climate impacts like flooding and coastal erosion, wildfire, and drought. Although its complicated and has some differences, this section basically replicates some of the streamlining improvements that FAST41 created for major infrastructure projects handled by the Federal Permitting Council. This includes dedicated attention and more conflict resolution structures (also lead agency powers, published timetable, single federal document, 2 year and 1-year timelines, etc.) This is all helpful text that will improve and speed up project review but isn’t a panacea.
There is an excellent new requirement for CEQ to build an ‘interagency environmental data system’ that holds quantitative and qualitative data associated with the development of and tracking of projects covered by environmental documents. Monitoring comes in here for the first time – really something that has never been part of NEPA. Mitigation requirements would be part of the system too. FAIR requirements for it too. It is meant to help avoid impacts, avoid duplicative analysis, and generally make reviews and project development better and better over time. A directive like this has been a long time coming and really brings NEPA into the 21st century.
The bill also includes language that creates a defensible basis for project sponsors and agencies to use interactive tools, visualizations, and virtual tools in place of pages of text. It requires CEQ to develop guidance for these approaches and create standards around their use in making environmental review more accessible and comprehensible to the public. These approaches need to be legally defensible alternatives to text or agencies will keep creating millions of pages of documents and create visual and interactive products – just doing the latter will be better in most circumstances.
The bill creates new ‘rapid response’ permitting task forces for offshore wind, onshore renewables, nature-based and restoration projects, transmission, and critical minerals. They are basically problem-identification, problem-solving and creative teams that would keep track of work in each of these sectors and try to make permitting and environmental review better. While the bill doesn’t give a lot of direction here, with the right prioritization and staffing, they could become the wellspring of many future ideas on making permitting run more smoothly.
There are new limits on litigation opportunities that are not dissimilar to some ideas that Republicans have proposed – these are generally modest but helpful. For example, it created a time limit on lawsuits (3 years) and limits litigation to federal courts of appeals.
The bill has a number of excellent provisions regarding staffing for projects and project sponsor funding for those positions. In a perfect world, this activity should be covered by government budgets, but this might be the only practical way to get key staff roles established. The bill authorizes project sponsors to basically be able to fund an advocate position within state (or federal agencies) who are hired and supervised by those agencies but would nonetheless likely serve as excellent champions and problem solvers to keep review on projects moving.
The bill creates new ‘community benefit agreements’ which have an expansive and vague role in allowing agencies to mandate that project proponents (for projects covered by an EIS?) to give funds to any state, community or Tribe that demands it, for the purpose of offsetting any impacts – regardless of significance. Agencies are expressly supposed to consider how much money and resources the project sponsor has in deciding whether to order a community benefit agreement, as well as cumulative impacts and EJ burdens of the community. The federal agency can order an agreement to be developed but it’s the state, community or tribe who has the explicit role in negotiating it. Funds don’t have to be used to offset the negative effects of the project – they can be used for anything that is “beneficial to communities.” This provision needs the most work of any of the sections of the bill that I reviewed.
For any major project – regardless of whether covered by an environmental impact statement (i.e. significant effects) or environmental assessment (i.e. insignificant effects) that affects an environmental justice community, the lead agency (not a consultant) must develop a ‘community impact report’ that describes the health and environment effects (including cumulative) of the project on the community and must include the community in early engagement opportunities on the impact report.
There is a new section on ‘nationally or regionally significant’ projects associated with switching to clean energy, transmission, climate adaptation, or public health. Although these projects are ‘bid out’ the agency gets to specify locations, establish compensatory and other mitigation requirements, requirements for community benefit payments, etc. The key thing about these projects seems to be that when a company (or state?) bids on them, it also adds money to its bid for all federal agency costs of environmental review. It’s not clear how bidders aren’t just incentivized to give agencies more money to get their bid selected. In general, its hard to understand what this section will accomplish.
The bill defines categorical exclusion, the mitigation hierarchy, environmental assessment, environmental justice, and a number of other terms. Although none of the definitions would be a surprise or are distinct either from definitions already in regulation or that are common to NEPA interpretation, it’s nonetheless still helpful to have them in law. I wish the mitigation hierarchy definition had three steps instead of five - two of the categories have always been pointless to distinguish in practice.
It allows (but unfortunately doesn’t require) Categorical Exclusions for one agency to be used by another.
The bill restructures CEQ to put the Permitting Council within it. It also creates a CEQ Environmental Justice office (that already exists through administrative action) and an office of the Chief Sustainability Officer, appointed by the President (It also puts the EPA EJ office into statute.)
An ‘Office of Transmission’ established at DOE is another promising effort to build advocates within government who would prioritize and problem solve for a sector of the economy that falls through some gaps. Like other staffing efforts in the bill, a lot depends on implementation, but the potential is there to use this office to help accelerate the grid modernization that we need to transition our economy to clean energy.
New administrative structures would focus on getting ‘zero emission’ energy facilities built on brownfield sites.
Requires NEPA documents to be published online, in searchable, machine-readable format. This should apply through other federal laws already on the books. Nonetheless, the language is helpful and includes additional points of emphasis that should make NEPA products easier to find and available quicker.
It allows agencies to charge fees for environmental reviews. Its unclear how this will work out given that agencies already require project proponents to fund their own environmental reviews. What this language likely will do is force project sponsors to pay more to cover federal agency staff costs as well, but maybe many sponsors would actually support this if it meant faster decision-making - I don't know. The language helpfully clarifies the ability of one agency to give another these funds for the purposes of completing their work on a review or environmental document.