An increased borrowing limit for the U.S. was not the only change brought about by the recently enacted Fiscal Responsibility Act of 2023. The National Environmental Policy Act (NEPA) review process was also on the minds of our legislators. Indeed, Congress chose to use the debt ceiling fight as a vehicle for implementing several changes to NEPA aimed at improving project authorization and management and establishing timelines for completing the review process. While not all the changes in the so-called Builder Act are dramatic, a handful of them could provide additional certainty for those in the oil and gas and renewables industries seeking federal approval for their projects.
Expedited Timeline
The Builder Act imposes new deadlines for completing the NEPA review for federal actions and provides project proponents an option for holding federal agencies to those deadlines. Specifically, the Builder Act creates time limits for the completion of Environmental Impact Statements (EIS) and Environmental Assessments (EA). EISs must be completed within two years of the date the agency determines that an EIS is required or a right-of-way application is complete. Whereas, EAs must be completed within one year of those triggering events. Further, the Builder Act expressly enables project proponents to obtain relief from the federal courts where the relevant agency fails to meet its review deadline. Under the new regime, a project proponent may obtain a court order requiring the relevant agency to complete its NEPA review within 90 days following the agency’s failure to meet the applicable deadlines.
Lead Agency
The legislation also requires a single federal agency to spearhead the NEPA process. This means that when multiple agencies have jurisdiction over a project, the agencies must designate a lead agency to conduct the NEPA review. The lead agency is responsible for developing a schedule in consultation with other process participants to determine a timeline for completing the review process. The legislation also includes provisions permitting a project sponsor to assist agencies in conducting environmental reviews to streamline the review process without taking authority and control away from the lead agency.
Streamlined Authorization
Further, the Builder Act explicitly limits the scope of NEPA reviews. The lead agency must constrain its analysis to “reasonably foreseeable” environmental effects and action alternatives. The Builder Act also requires that those alternatives be “technically and economically feasible.” To assist the lead agency in completing the NEPA process, a project proponent is now explicitly authorized to prepare the relevant environmental documents, subject to the lead agency’s oversight.
Additionally, the lead agency now has the express authority to not only prepare a programmatic environmental document but also to rely on previously prepared programmatic documents drafted either within the last five years or after five years so long as the agency reevaluates the analysis in the document to ensure the analysis is valid. Congress’s express authorization for the use of programmatic EISs may reduce the potential for legal challenges to an agency’s reliance on them when approving subsequent projects within a programmatic EIS’s scope.
For additional insight on the impacts that the Fiscal Responsibility Act of 2023 – and specifically the Builders Act – may have on your business and industry, the Energy and Natural Resources Section of Husch Blackwell can offer its assistance. Andrew Glenn, Katie Andersen, and the rest of our team can explain compliance with the legislation and its effects on the oil and gas and renewable energy industries. Contact Andrew Glenn or another member of our team for further information.