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Abstract

The National Environmental Policy Act (NEPA), the “Magna Carta” of environmental protection, serves two important purposes: providing (1) decision makers and (2) the public with a federal agency’s assessment of the impacts that may occur from its proposed or selected course of action before the agency acts. Despite frequent criticism about NEPA reviews causing costly project delays, NEPA’s procedural requirements and framework had remained unchanged for more than 40 years. That all changed with the Fiscal Responsibility Act of 2023 (FRA). The writing on the NEPA wall is now very clear: agencies must now produce shorter NEPA analyses with a narrower scope in less time. This congressional direction is consistent with direction from the current Trump administration: permitting reviews must be efficient and timely to support critical national needs. Given recent executive and judicial actions, agencies must navigate the FRA changes to NEPA without the Council on Environmental Quality’s (CEQ) implementing regulations in place. Thus, while the streamlining requirements are clear, the implications for agency practice are not. Given how often agencies’ NEPA reviews are challenged, it is important for agencies and NEPA practitioners to have a better understanding of these requirements and how courts analyze them to ensure that the agency’s NEPA analyses withstand judicial scrutiny.

To help understand how the FRA’s changes came to be, what those changes mean for agency NEPA practitioners, and how those practitioners can prepare environmental analyses that meet NEPA’s requirements, this Article (1) provides a brief history of NEPA to illustrate what led to the passage of the FRA; (2) highlights the FRA’s changes, exploring in depth the most significant changes and how some of the changes appear to codify judicial precedent; (3) discusses implications for agency practice; and (4) describes how the FRA’s changes may challenge agencies and increase litigative risk. Generally, this Article concludes that the FRA did not contain many surprises. Rather, it largely codified existing CEQ guidance and some agency practices and parallels or adopts recent executive and judicial actions. Further, the FRA added clarity in several areas and provided additional details about what is expected going forward for balancing the need to take a hard look at environmental impacts with the need for timely action. Finally, the Article recognizes that there is still much room for interpretation and time will tell how the courts will rule on post-FRA NEPA analyses and practices. What constitutes a reasonable hard look may remain a hard target to pin down, but courts and agencies now have a clearer roadmap for what, when, and how a NEPA review should be done. Further, NEPA’s core purposes have not changed––agencies and practitioners can and should move forward in a way that best protects the environment and humanity. And while there is uncertainty in how courts may rule, this Article provides recommendations on how to prepare an environmental analysis to withstand judicial scrutiny.

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