How the debt deal would modernize Nixon-era NEPA reviews

By Niina H. Farah | 06/20/2023 07:39 AM EDT

The National Environmental Policy Act was ahead of its time when it passed in 1970, but experts say time has passed the review process by.

A MarkWest Liberty natural gas pipeline and fracking well cap is seen in Valencia, Pa., on Oct. 14, 2020.

A natural gas pipeline and well cap are seen in Valencia, Pa., in 2020. Ted Shaffrey/AP Photo

The federal government is weighing a 21st-century makeover to environmental reviews that could significantly change how quickly energy projects are analyzed and approved.

President Joe Biden signed the debt ceiling deal, known as the Fiscal Responsibility Act, into law earlier this month, and in the process approved $500,000 in funding for the White House Council on Environmental Quality to explore a unified online portal to track National Environmental Policy Act reviews, streamlining the internal process for agency analyses of major projects like pipelines and highways — as well as revamping publicly available information.

The process would also examine how information is presented within NEPA reviews themselves, adding new features like animation and 3D modeling. The reforms aim to make reviews more efficient for project developers and understandable to the public.


Developing a unified electronic NEPA filing system “could actually be really exciting,” said Ted Boling, a former CEQ official under the Obama and Trump administrations and a partner at the firm Perkins Coie LLP.

The debt ceiling legislation seeks to “tackle the question of better technological approaches to the essential problem — marshaling up significant environmental information,” he said.

Dinah Bear, a former CEQ general counsel for both Republican and Democratic administrations, said during a recent press conference that a unified NEPA portal is long overdue. She questioned why Congress directed a study rather than beginning the process of creating a system immediately.

“It should just be done,” she said. “CEQ has for a long time wanted electronic availability for agencies — not just for the applicants’ benefit, but for the agencies’ benefit.”

She said CEQ’s goal has long been to create a system where a user could, for example, quickly call up all the NEPA analysis on pipelines’ impact on sage grouse habitat.

The funding in the debt ceiling deal comes alongside other NEPA reforms in the legislation, such as requiring page limits for reviews and shifting responsibility for certain analyses to project developers. Those changes have drawn mixed reviews from legal experts.

Some environmental groups warn efforts to speed the pace of reviews could compromise the quality of analysis and cede too much power to project developers. But supporters of reform say the current approach means projects are bogged down with years of unnecessary delays.

The NEPA changes are also part of a broader push within the federal government to streamline the often time-consuming process for agencies to approve new projects.

Model for CEQ

Even as other NEPA reforms in the debt ceiling deal have drawn mixed reactions, experts praised efforts to create a single portal for environmental reviews and make information easier for the public to understand.

“This is exactly what we were asking for and calling for,” said Laura López-Hoffman, a natural resources professor at the University of Arizona.

López-Hoffman is the principal investigator for NEPAccess, an online platform developed by University of Arizona researchers that gives members of the public, businesses, project developers and agencies access to information about NEPA decisionmaking.

The platform, which receives grant funding from the National Science Foundation and is still in a beta version, first came online in 2021.

It aims to become a springboard for an interagency government platform.

“The idea was to create, not just a repository of information, but to use the latest and best data science to turn that kind of information that’s in NEPA documents into knowledge,” she said. “Then when you have knowledge, you can synthesize, and you can innovate.”

CEQ could not be reached for comment on whether it was looking to NEPAccess as a model for a potential federal platform.

Congress’ directive in the debt ceiling legislation to study the creation of a single electronic NEPA platform encompasses many of the aspects that López-Hoffman’s team has been working on. But one element that is still missing is language about streamlining the process for public engagement, she said.

She said having a “one-stop shop” platform is necessary to fulfill the vision of the landmark environmental law.

‘Like using an abacus when we have Google Maps’

NEPA was ahead of its time when it was passed in 1970, López-Hoffman said, but the review process has become outdated with the advent of the internet.

Instead of finding information from a single database, project reviewers spend hours emailing agencies or other businesses, bogging down development timelines.

“No company would willingly operate in this manner,” López-Hoffman said.

She pointed to the example of a NEPA practitioner preparing a cumulative impact assessment for a mining permit. After emailing for copies of analyses completed a decade ago, that reviewer would pull any maps they found on a piece of paper, put the document in a scanner and digitize it.

“That’s kind of like using an abacus when we have Google Maps that can do so many different things,” she said. “It’s unconscionable, really, that we should be working like this.”

Past administrations have pushed to update the NEPA process. The Trump administration finalized the first-ever new implementing rules for NEPA. Many Trump-era changes that limited the scope of environmental reviews were rolled back by the Biden administration, but some features, including reintroducing page limits on reviews, have been codified in the recent debt ceiling legislation.

Timothy Male, the executive director of the Environmental Policy Innovation Center who worked at CEQ during the Obama years, said that under the former administration, there had been discussions about how to create more visual NEPA analyses to better explain to the public what changes from a project would feel like.

“The concepts have been around for a while,” Male said. “But one of the problems is that anything other than text is not really defensible” in court.

As a result, it has been difficult to make the case to spend extra money to illustrate the effects of a project like a gas pipeline or a hydroelectric dam when a judge would ask for a written explanation anyway, he said.

The portal would allow agencies like EPA, the Interior Department and the Department of Agriculture to edit documents in real time through a cloud-based system that could also be accessible on mobile devices.

The NEPA provision of the debt ceiling deal is an upgrade from an earlier version of reforms in a House bill, in that the new legislation explicitly states that the electronic portal should present information “suitable for a lay audience,” said Male. The language suggests the government would consider a portal with both internal functions for agencies and external features for the public, he said.

López-Hoffman said that the goal for creating NEPAccess was to provide a public good.

“We would be delighted to partner with CEQ or another federal agency in using the latest and greatest data science to fulfill NEPA’s promise,” she said.