NEPA Reform Needs to Be Further Addressed by Congress: Otherwise, Delays Could Remain

 

     Permit reform, especially of the National Environmental Policy Act (NEPA), to speed up permitting for critical infrastructure projects, is a clear need, acknowledged by a bipartisan majority. It is something that can and should be enacted by Congress. Efforts to speed up processes enacted by the executive branch and prescribed by the courts are not enough.

     NEPA reform was addressed by Congress and the Biden administration in an effort to speed up certain permitting, but more is needed. The Supreme Court also recently chimed in with a decision. The Biden changes seek to address concerns with permitting for efforts such as wildfire management, electric vehicle charging infrastructure, and offshore wind, according to their announcement. The Bipartisan Permitting Reform Implementation Rule by the Biden administration released phase 2 in May 2023, with the final version released in May 2024. However, these reforms were geared toward renewable energy projects, and they actually increased requirements to focus on climate change impacts and environmental justice impacts. In some ways, they actually expanded NEPA requirements. In June 2023, Biden signed the Fiscal Responsibility Act. It was a law to increase the debt ceiling, but it included amendments to NEPA. The amendments are known as the Builder Act. NEPA reviews are very slow and far more thorough than they need to be, many have argued. The Builder Act clarifies and codifies a number of NEPA issues and protocols. Legal firm Bracewell gives some examples, given below. They also expected guidance from the Council on Environmental Quality (CEQ), which, presumably, is the phased Biden rule mentioned above. The Trump CEQ would likely change what they can to conform to their goals, and indeed, they have.

1. The law codifies the longstanding requirement that agencies consider only the “reasonably foreseeable environmental effects” of a proposed agency action. The precise meaning of that single phrase in any given scenario, such as the scope of analysis of impacts on climate change, drives many disputes over the adequacy of an agency’s NEPA review.

2. Under the Builder Act, an agency must consider a reasonable range of alternatives to a proposed action, but they must be “technically and economically feasible” and meet the “purpose and need” of the project.

3. The law requires federal agencies to “prescribe procedures to allow a project sponsor to prepare an environmental assessment or EIS ….” While this has always been legally permissible, some agencies have not been willing to afford applicants this opportunity. Applicant-prepared NEPA analyses help project sponsors meet a more efficient schedule without compromising the analysis.

4. The Builder Act imposes deadlines: two years for an EIS and one year from an EA from a triggering date. The law even allows a project sponsor to seek a court order if an agency fails to act under the deadline. However, if the agency determines that the deadline cannot be met, it may extend the deadline “in consultation with”—but requiring not agreement with—the applicant. 

5. The law seemingly intends to codify what has become known as a the “small federal handle doctrine.” The doctrine holds that if a federal agency only has “control and responsibility” over a small portion of a private project, that project does not become federalized to the point of requiring NEPA review. The Act states that a “major federal action” does not include a non-Federal action “with no or minimal Federal involvement where a Federal agency cannot control the outcome of the project.”

     In February 2025, a Senate Environment and Public Works (EPW) Committee hearing discussed bipartisan cooperation with the Energy and Natural Resources Committee and other committees. According to an article in the Eno Center for Transportation, Biden’s phase 2 rule was vacated, reverting the rule back to Trump’s 2020 version:

“On February 3, {2025} the ND District court issued the ruling in Iowa v. CEQ concurring with the D.C. Circuit Court finding that CEQ lacks rulemaking authority and additionally finding the 2024 “Phase 2” rule to have been arbitrary and capricious. This decision vacated that rule, restoring the 2020 NEPA regulations.” 

The Trump administration was concerned that the Biden changes would not result in faster reviews and permit times. One of the major goals is to reduce the level of detail of NEPA environmental impact statements (EISs). A May 10, 2025, article in the Regulatory Review notes:

“Under a Trump Administration committed to privileging fossil energy over clean energy development, bipartisan NEPA reform appears unlikely.”

I hope they are wrong about that, and I think they are wrong. They note that Trump’s preference for fossil fuel energy over renewable energy is a factor. The Democrats broke with environmental groups mainly to speed up permitting for renewable energy projects, although some favor speeding up all projects, including fossil fuel projects. Permit reform is certainly needed for most, if not all, projects. The debate about the requirements and limitations of NEPA is ongoing in the legal community. Some say it is not NEPA but local issues that delay projects. Others say NEPA impedes necessary climate projects. Others say that assertion is overblown. The Trump administration clearly believes it impedes necessary fossil fuel projects. Many agree that permitting can be substantially sped up without compromising the environment. Republican Rep Josh Harder’s concise statement states the need:

“We shouldn’t have to wait years to build common-sense projects like roads, bridges, and clean energy projects that make our communities better and more affordable. It’s clear the NEPA status quo is unnecessarily burdensome with current interpretations worlds apart from congressional intent. The best long-term fix is a bipartisan bill that makes it easier to build the projects we need quickly while respecting environmental concerns.”

     The recent Supreme Court decision mentioned above, Seven County Infrastructure Coalition v. Eagle County, narrowed the scope of NEPA reviews, including to the near geography most affected. This was a unanimous 8-0 decision that I wrote about last month. The decision also defers to agency discretion. According to legal firm Mayer/Brown:

“…it clarifies what federal agencies must consider in environmental impact analysis, thereby reducing regulatory uncertainty and the risk of litigation-driven delays.”

The takeaways of the decision they give are: 1) faster, focused reviews, 2) reduced legal risk and delay, and 3) a boost for infrastructure development and investment. While these are all good outcomes, there is still a need, many have argued, for Congressionally mandated NEPA reform that clearly limits the ability of groups to delay projects with lawsuits, a tactic long used. Breakthrough Institute’s Marc Levitt notes that there is still a need for Congressional clarification on NEPA:

“The next phase of NEPA litigation will likely test how much discretion lower courts are actually willing to grant under the new regime. In its zeal, the Trump Administration may overreach, which could backfire and prolong project timelines. That dynamic could also delay efforts to provide agencies with legal certainty. Alternatively, a future Administration could choose to expand the scope of its NEPA reviews. That approach would be wholly consistent with Seven County and its emphasis on agency discretion.”

“But the challenges of deploying energy technologies, building transmission, managing the nation’s forests, and pursuing other critical infrastructure projects remain present and urgent. The signals sent from the White House and the Court will likely be heard by judges, agencies, project developers, and other stakeholders, hopefully reinforcing the imperative to speed NEPA reviews. But meaningful reform will require that lawmakers pick up these signals as well.”

“Pragmatic legislation can provide both clarity and, more to the point, the added force of statute. Done right, such legislation should reduce NEPA’s burden and provide certainty to project developers and financiers. Meaningful reforms would expedite agency review, narrow paths to litigation, and accelerate judicial proceedings. But without clear guidance from Congress, legal uncertainty and ongoing changes to NEPA implementing regulations could stymie a core goal of NEPA reforms—providing the stable, predictable regulatory environment we need to build big things.”

 

 

 

References:

 

The Widening Vacuum of NEPA Law. Marc Levitt. Breakthrough Institute. June 13, 2025. The Widening Vacuum of NEPA Law - The Breakthrough Journal

NEPA REFORM: Harder Statement on Supreme Court Ruling on Environmental Review. Representative Josh Harder. May 29, 2025.  NEPA REFORM: Harder Statement on Supreme Court Ruling on Environmental Review | Representative Josh Harder

NEPA ‘Phase 2’ revamp aims to reverse Trump, boost renewables. Robin Bravender. E&E News. July 28, 2023. NEPA 'Phase 2' revamp aims to reverse Trump, boost renewables - E&E News by POLITICO

Congress Amends NEPA in Effort to Reform Federal Permitting: Update. Bracewell. June 8, 2023. Congress Amends NEPA in Effort to Reform Federal Permitting | Bracewell LLP

CEQ Completes NEPA Overhaul with Final Phase 2 Regulations. Brigit Rollins. The National Agricultural Law Center. May 14, 2024. CEQ Completes NEPA Overhaul with Final Phase 2 Regulations – National Agricultural Law Center

Permitting Path Forward Remains Critical Yet Uncertain. Rebecca Higgins. Eno Center for Transportation. February 21, 2025. Permitting Path Forward Remains Critical Yet Uncertain - The Eno Center for Transportation

Is it Time to Reform a Landmark U.S. Environmental Law? Connor Henderson, Matthew Spero, and Gloria Lyu. The Regulatory Review. May 10, 2025. Is it Time to Reform a Landmark U.S. Environmental Law? | The Regulatory Review

Supreme Court Focuses NEPA Review: Implications for US Infrastructure. Avi M. Kupfer, David Narefsky, Joseph Seliga, Nicholas R. Vallorano, and Jason N. Pham. Mayer/Brown. June 13, 2025. Supreme Court Focuses NEPA Review: Implications for US Infrastructure | Insights | Mayer Brown