Macro photograph of the US Capitol building on back of a fifty dollar bill.

Federal Debt Ceiling, Environmental Justice Communities and NEPA

Macro photograph of the US Capitol building on back of a fifty dollar bill.

After weeks of negotiations and the looming threat of defaulting on our country’s debts, President Biden signed the Fiscal Responsibility Act (FRA) in May. The FRA ended the federal student loan repayment suspension and expands work requirements for food stamp recipients, which will impact low-income and working-class people the most.

What might be less known, the FRA makes significant changes to one of the country’s bedrock environmental laws disguised as “permitting reforms.” The National Environmental Policy Act (NEPA) allows the public and decision-makers to understand the environmental impacts of major federal actions and provides avenues for public participation in these decisions.1 NEPA’s analysis of potential alternatives and commitment to mitigation measures help ensure the federal government remains transparent and accountable to environmental justice communities.

Among the new changes to NEPA under the FRA, include:

  • Environmental assessments (EA) and environmental impact statements (EIS), the key disclosure documents required under NEPA, must be completed within 1 or 2 years, respectively.2 The new changes allow project sponsors to petition a court if a deadline is missed.3 Requiring agencies to stick to specific timelines could be a double edged sword for environmental justice communities and depends on the source of the delay. For example, these deadlines could force agencies to coordinate and collaborate in a more timely manner. On the other hand, these timelines could result in incomplete analysis or assessments and steamroll through community engagement in order to rush a decision.
  • Lead agencies must also prescribe procedures to allow a project sponsor to prepare an EA or EIS under the supervision of the agency.4 Although federal agencies already require a private project sponsor to pay for the preparation of an EA or EIS5, handing this responsibility to a project sponsor can obstruct an accurate environmental analysis and add bias for a project. Courts will continue to defer to an agency’s decision and rely on the documents prepared by project proponents. This means that impacted communities will need to make sure that agencies have the required expertise, time and budget to independently review documents prepared by project proponents.

Energy storage has been added to the list of project categories eligible for expedited environmental review under the FAST-41 Act.6  This change puts building energy infrastructure for our clean energy future at odds with communities’ right to strong environmental permitting processes that protect their health and welfare. In fact, experts note that the environmental review process is often not the reason for delay for these projects.7 Rather issues such as the transmission bottleneck is preventing clean energy projects from getting connected to the grid.8

Moving forward, our allies are demanding that we expand NEPA’s scope and powers to protect environmental justice communities.9 For example, the A. Donald McEachin Environmental Justice for All Act would elevate the role of Tribal governments to cooperating agencies, giving them a stronger say with respect to proposed projects that could affect their reservation lands and sacred sites. This same bill would also restore NEPA’s requirement to consider and analyze cumulative impacts so that communities can advocate for mitigation measures that could lessen the environmental and health burden they might face from a new project.10 These proposed changes to strengthen NEPA  can ensure impacted groups have a seat and voice at the table regarding future projects happening in their communities.

Advocates and impacted communities are also encouraged to provide input on the implementation of these new changes through a formal rulemaking process. The Council on Environmental Quality is requesting public comment until September 29, 2023 and will hold virtual public meetings on August 26, August 30, September 11, and September 21, 2023.  These revisions represent some of the most significant changes to NEPA since its passage in 1970. The participation of EJ voices are critical to preserve NEPA’s core purposes of informed decision making and ensure equal access to a healthy environment.

[1] Council on Environmental Quality, A Citizen’s Guide to the NEPA, Executive Office of the President, at page 1.

[2] Fiscal Responsibility Act of 2023, Pub. L. No. 118-5, §107 (e)(1)(A)(1)-(2), 137 Stat. 10, 42 (2023).

[3] Id.

[4] Id.

[5] A Citizen’s Guide to the NEPA at p. 4.

[6] Fiscal Responsibility Act of 2023, 137 Stat. 10, 46.[7] Center for Biological Diversity, Pursuing a Just and Renewable Energy System (May 2023) at p. 4.

[7]  Abigail Dillen and Rhiana Gunn-Wright, America’s Clean Energy Transition Needs Federal Action – Not Rollbacks, Roosevelt Institute (July 7, 2023).

[8] Shannon Osaka, This Little-Known Bottleneck is Blocking Clean Energy for Millions, WASH. POST (Dec. 20, 2022).

[9] See Center for Biological Diversity, Pursuing a Just and Renewable Energy System (May 2023) at p. 4.

[10] A. Donald McEachin Environmental Justice for All Act of 2023, S. 919, 118th Cong. §14 (2023).