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House Task Force Proposals Would Expedite NEPA Review of Energy Projects

The House Resources Committee task force's initial recommendations for improving the project review process under the National Environmental Policy Act (NEPA) could have a "significant," potentially favorable benefit for the energy industry, according to a Washington, DC-based law firm that specializes in energy and environmental legal issues.

The House NEPA Task Force, chaired by Rep. Cathy McMorris (R-WA), issued its initial findings and 22 draft recommendations in late December following a seven-month review of the NEPA process. "Some of these recommendations, if implemented, could have a significant impact on the process for environmental review of federal agency permitting of energy projects," said the law firm of Van Ness Feldman in a Jan. 5 "Issue Alert" on the task force's draft report.

The task force's initial report recommends that Congress impose an 18-month time limit on the completion of an environmental impact statement (EIS) for larger energy projects and a nine-month time limit on the completion of the less-intensive environmental assessment (EA) for smaller energy projects. "Such a change, if successfully implemented, could reduce the amount of time required to complete the NEPA process for an energy project," the law firm said.

The report also proposes that Congress define "major federal action" for the purpose of determining when a full EIS, rather than an EA, is required. "The new definition would only include new and continuing projects that would require substantial planning, time, resources or expenditures...[This change] could limit the types of energy projects that must be subjected to a more resource- and time-intensive EIS, and allow such projects instead to proceed with an EA," Van Ness Feldman said.

The task force further suggested certain changes to "clarify, add certainty to, and perhaps limit" the analysis of "cumulative impacts" in the environmental review of energy projects, the law firm said. Specifically, it recommends that Congress "clarify how agencies would evaluate the effect of past actions for assessing cumulative impacts." And it proposed that the White House Council on Environmental Quality (CEQ) be directed to issue regulations with respect to the types of future actions that are appropriate for consideration under the cumulative impact analysis, focusing on "concrete" proposed actions rather than actions that are "reasonably foreseeable" under current regulations.

As for other significant recommendations, the task force proposed that NEPA be amended to create a citizen lawsuit provision that would specify standards and procedures for judicial review of NEPA, potentially limiting such lawsuits, Van Ness Feldman noted.

The House draft report also directs the CEQ to prepare regulations requiring agencies to give "greater weight to issues and concerns" raised by local interests when evaluating environmental impacts. In addition, it proposes to amend NEPA to require agencies to grant cooperating agency status to Native American tribal, state or local parties that request it, the law firm said.

The recommendations in the task force's draft report were prepared by staff of the House Resources Committee, and have not been formally endorsed by any congressional member on the NEPA Task Force, according to Van Ness Feldman. Comments on the draft report are due by Feb. 6.

"Although it is uncertain whether the NEPA Task Force's draft recommendations ultimately will be reduced to legislation, or that such legislation would be successful, the report's initial findings and recommendations reflect continuing concerns regarding NEPA's impact on the permitting and development of energy and other projects," the law firm said. It advised "developers and operators of such projects [to] give serious thought to monitoring and engaging in the continuing discussion regarding the future of NEPA."

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