Amendments to NEPA from the Fiscal Responsibility Act of 2023
On June 3, 2023, President Biden signed into law the Fiscal Responsibility Act of 2023 (FRA). The Council on Environmental Quality (CEQ) is providing the following questions and answers to assist agencies in their implementation while CEQ undertakes the rulemaking process to implement the NEPA amendments in the CEQ regulations. CEQ anticipates updating this list over time.
What changes did the Fiscal Responsibility Act of 2023 (FRA) make to NEPA?
The FRA amendments to NEPA:
Codify that environmental impact statements should include discussion of reasonably foreseeable effects of a proposed action, reasonably foreseeable effects that cannot be avoided, and a reasonable range of alternatives to the proposed action. (Sec. 102(2)(C); 42 U.S.C. § 4332(2)(C)).
Clarify requirements for determining whether to prepare an environmental document and the appropriate level of NEPA review. (Sec. 106; 42 U.S.C. § 4336).
Clarify the roles and responsibilities of lead agencies and cooperating agencies, including designation of such agencies. (Sec. 107(a); 42 U.S.C. § 4336a(a)).
Promote development of a single environmental document. (Sec. 107(b); 42 U.S.C. § 4336a(b)).
Set page limits and deadlines for environmental impact statements and environmental assessments. (Sec. 107(e) and (g); 42 U.S.C. § 4336a(e) and (g)).
Direct agencies to develop procedures for how, under Federal agency supervision, project sponsors may prepare environmental assessments and environmental impact statements. (Sec. 107(f); 42 U.S.C. § 4336a(f)).
Provide time lengths and circumstances for when agencies can rely on programmatic environmental documents without additional review. (Sec. 108; 42 U.S.C. § 4336b).
Establish a process for Federal agencies to use another agency's categorical exclusions. (Sec. 109; 42 U.S.C. § 4336c).
Require CEQ to conduct a study of online and digital technologies to help provide for efficient reviews and improve public accessibility and transparency. (Sec. 110; 42 U.S.C. § 4336d).
Define terms used in NEPA, including cooperating agency, environmental document, lead agency, major Federal action, participating Federal agency, programmatic environmental document, and special expertise. (Sec. 111; 42 U.S.C. § 4336e).
What is the effective date of these amendments?
The amendments to NEPA are effective June 3, 2023.
How do the amendments apply to ongoing NEPA reviews?
Federal agencies are responsible for determining how the amendments apply to their ongoing NEPA reviews and should consider congressional intent to facilitate more efficient NEPA analysis when making this determination. Many of the provisions of the FRA codify best practices an agency may already include in its NEPA reviews, or ones an agency may integrate into an ongoing review with little or no disruption. Where implementation of a provision could lead to inefficiency in an ongoing NEPA review, agencies should engage in a fact-specific evaluation to determine the appropriate approach that considers the statutory requirements; the level of NEPA review (i.e., environmental impact statement, environmental assessment, or categorical exclusion); the stage at which the environmental review was at the time of the amendment; the expectations of any project proponents; additional resources that would be required to implement the provision; the extent of any disruption it could cause; and other legal considerations.