Speeding towards NEPA reform

The SPEED Act, which passed a vote in the house, would make it easier and faster to approve large infrastructure and energy projects by scaling back parts of the federal environmental review process. The bill must now move to the U.S. Senate for a vote.

The Standardizing Permitting and Expediting Economic Development (SPEED) Act is a permitting reform bill introduced by U.S. House of Representatives Natural Resources Committee Chairman Bruce Westerman (R-AR) and Rep. Jared Golden (D-ME) aimed at overhauling the National Environmental Policy Act (NEPA). NEPA currently requires government agencies to assess and publicly disclose the environmental impacts of significant federal actions before they proceed. Proposed changes could affect protections for wildlife by altering the scope of impact analyses, restricting consideration of new science, reducing agency flexibility to update assessments, and altering judicial and interagency reviews.

Why now?

The National Environmental Policy Act (NEPA) requires federal agencies to evaluate and disclose the environmental impacts of major projects before they move forward. In recent years, those review requirements have increasingly been criticized as slowing down infrastructure, energy, and development projects, with pressure to accelerate construction and reduce costs intensifying calls for NEPA reform. Members of both major political parties believe that NEPA should be reformed, however they disagree in the manner of the reformation.

“In the name of speed or maybe greed, this legislation takes a sledge hammer to NEPAs core functions” said Rep. Jared Huffman (D-CA).

The SPEED Act aligns with the administration’s Executive Order ‘Unleashing America’s Energy’, which directs the Council on Environmental Quality “to expedite and simplify the [NEPA] permitting process.”

What the SPEED Act proposes

The SPEED Act has many provisions that widely alter the NEPA review process:

Impacts on research integration: Specifies that studies published after a permit application or notice of intent do not need to be considered, limiting the incorporation of emerging science.

Limiting scope of environmental impacts: The act would restrict agencies to evaluating impacts that share a reasonably close causal relationship with the project and bars consideration of effects “separate in time or place from the proposed agency action,” seemingly barring consideration of climate change effects, which often occur in locations distant from fossil-fuel-emitting projects. Depending on interpretation, the wording could also bar consideration of downwind or downstream pollution.

Limiting agency revisions and reviews: The proposed changes would prohibit agencies from rescinding or altering completed environmental documents except under narrow circumstances.

Cooperating agency involvement: Limits cooperating agencies to reviewing only matters within their jurisdiction and prevents them from preparing environmental documents unless required by the lead agency.

Stricter timelines

Reliance on prior environmental reviews:  The SPEED Act would allow agencies to reuse or modify previously completed Environmental Assessments, Environmental Impact Statements, or categorical exclusions for similar actions.

What requires review: The SPEED Act proposes raising thresholds for federal actions subject to NEPA, adds exclusions for grants, farm loans, and guarantees, and excludes projects unless the agency has complete control and responsibility over effects.

Defining the foreseeable future: The proposed changes narrow the definition of “reasonably foreseeable” effects to only those caused by the immediate project in the area impacted, excluding speculative, future or distant impacts in space or time.

Judicial review: Shortens the window for legal challenges to 150 days, limits who can sue and allows litigants to bring claims only related to the particular comments they submitted. The statute also appears to bar challenges to agency decisions to categorically exclude activities from NEPA. The statute also imposes timelines on judges reviewing cases, and restricts courts to remanding decisions for correction without stopping or revoking permits. Consequently, even successful NEPA challenges cannot stop or delay inadequately considered projects.

Potential Implications

By preventing agencies from revisiting or reversing prior NEPA analyses, the changes proposed by the SPEED Act would lock in past decisions, and reliance on older assessments could underestimate current threats to wildlife and reduce adaptive management. In addition, limiting cooperating-agency roles may reduce the U.S. Fish and Wildlife Service’s influence on permitting decisions. Meanwhile shortened, more restrictive judicial-review timelines could make legal challenges to projects harming wildlife harder and faster to resolve, leaving less opportunity for mitigation. The changes to the SPEED Act could limit the incorporation of emerging science, climate change, and other biological and habitat information into project reviews, thereby constraining agencies’ ability to analyze impacts on species and ecosystems. Moreover, the SPEED Act would decrease agencies’ incentives to comply with NEPA, because even if courts determined agencies’ analyses to be inadequate, courts would be powerless to pause projects.