Overview
Policymakers have frequently expressed concern over project delays caused by Environmental Impact Statements (EIS), but the actual cause of most delays and paperwork under the National Environmental Policy Act (NEPA) are Environmental Assessments (EAs). These EAs have evolved far beyond their initial regulatory purpose, now requiring approximately 30 times more time and paperwork in aggregate than EIS documents. Congress should consider reforms that empower agencies to act quickly when projects have no environmental impact.
Problem
EAs were introduced by the Council on Environmental Quality (CEQ) to establish a procedure for determining whether a proposed action required a full EIS, or whether it could receive a ‘finding of no significant impact’ (FONSI) and be exempted from further NEPA scrutiny. Over time, however, CEQ and courts ruled that EAs were procedurally necessary for making a FONSI determination, effectively turning an EA into a mini-EIS. This decision forced EAs to comply with a court-determined standard of what constituted a “sufficient EA.”
As a result, EAs, which were once succinct public documents, ballooned in size from about 10 pages in 1978 to an average of 500 pages in 2020, with some even reaching a staggering 4,007 pages. Given that EAs are far more frequent than EIS reviews (around 12,000 EAs per year compared to approximately 200 EISs), this increase in length has led to EAs requiring 30 times more paperwork and staff hours than EISs.
As EAs and EISs started demanding significant time and resources, federal agencies became proficient in determining whether a project needed an EA or EIS. When an agency decides to conduct an EA, more than 99% of the time, the process concludes with a FONSI. This means that in more than 99% of cases, federal agencies can predict whether an action will significantly impact the environment even before preparing an EA.
The present predicament is that the vast majority of all NEPA delays and paperwork (30 times more than EIS review) are spent reviewing projects that pose no environmental threat and do not necessitate NEPA review. This is further complicated by the fact that EAs are being used to solve a problem that has already been addressed; agencies are fully capable of identifying significant environmental impacts before preparing an EA.
Bipartisan Solution
Congress should reform EAs to function as internal agency documents that are not required in procedural law. This shift would return EAs to their original purpose of being concise public documents, freeing agencies to focus on reviewing projects that truly pose a substantial environmental risk.
To achieve this, Congress should override CEQ guidelines and assert that FONSI determinations do not necessitate the preparation of an EA. This change would transform EAs from legally required documents to optional internal agency guides for making EIS/FONSI decisions.
This reform would remove an unnecessary layer of bureaucratic review without affecting agency incentives or the review of environmentally impactful actions. Agency FONSI decisions could still be reviewed and challenged in the courts, but plaintiffs would need to demonstrate that the FONSI decision itself was inaccurate on the substance of the matter, rather than pointing to procedural omissions or errors by the agency.
Agencies would still have a strong incentive to make accurate and thoroughly reasoned FONSI determinations. Additionally, the process for proposing mitigation measures would remain the same; agencies and project sponsors would still be encouraged to recommend and comply with these measures. This reform would simply allow agencies the autonomy to act as soon as they can accurately determine a FONSI.
