On September 16, 2020 Senator Mike Lee (R-Utah) introduced the NEPA Agency Process Accountability Act, proposed legislation that would shorten the amount of time agencies spend reviewing the environmental impact of their regulations and action and reduce the paperwork associates with these scientific studies.[1]

The reform would prevent agencies from dragging their feet in implementing policy. The National Environmental Protection Act (NEPA) requires agencies to consider the environmental impact of their actions and if possible, take steps to mitigate the environmental impact of their decisions through alternatives.[2] The NEPA Agency Process Accountability Act would prevent agencies from stalling policy by requiring that agencies not consider alternatives that are not “technically or economically feasible to the project sponsor.”[3]

The act would also prevent agencies from engaging in multiple rounds of studies. Under Senator Lee’s legislation, all agencies are required to submit a single Environmental Impact Statement or Environmental Assessment, and so there is no possibility of prolonged and potentially politically motivated chain of studies. [4]

The act will also untie agency hands by allowing them to exclude locations or sites from environmental impact statements or environmental assessments by allowing for categorical exclusions without compliance with the Administrative Procedure Act. Currently, if an agency excludes a location from an environmental study by arguing that a similar location was found to acceptable for the course of action the agency plans to undertake, they would still have to issue the rule by following the formalities (administrative hoops) of the Administrative Procedure Act. This legislation would therefore provide agencies with the opportunity to start working right away by exclude regions where similar locations have undertaken Environmental Impact Statements and been approved for the similar agency policy or conduct.[5]

The statute would also demand more regulatory transparency from agencies, requiring that they report annually to Congress with data on the number of Environmental Assessments, Environmental Impact Statements, and Categorical Exclusions they have conducted and the amount of time it took for them to create those documents.[6]

The law would also change the EPA’s role in the NEPA process. Currently, all Environmental Impact Statements relating to the air and natural disasters related to air pollutants are subject to EPA review on top of any review by the relevant agency. Senator Lee’s legislation would allow the EPA the flexibility to only seek review of those regulations it sees fit, not all related organizations as is currently the case under Section 309 of the Clean Air Act.

Finally, the legislation will provide two groundbreaking changes to how NEPA operates. First, it would allow unbiassed third parties to issue Environmental Impact Statements that the agency can use to satisfy its obligations under NEPA, as long as the EPA independently evaluates and scrutinizes the findings. Second, the legislation would allow an agencies, in light of new or unexpecting circumstances regarding an evaluation, to not redo the NEPA process but undertake mitigating efforts to continue and complete the NEPA study it was working on.

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[1] “Sen. Lee Introduces NEPA Process Accountability Act” Mike Lee US Senator for Utah. https://www.lee.senate.gov/public/index.cfm/2020/9/sen-lee-introduces-nepa-process-accountability-act

[2] “Sen. Lee Introduces NEPA Process Accountability Act” Mike Lee US Senator for Utah. https://www.lee.senate.gov/public/index.cfm/2020/9/sen-lee-introduces-nepa-process-accountability-act

[3] “Sen. Lee Introduces NEPA Process Accountability Act” Mike Lee US Senator for Utah. https://www.lee.senate.gov/public/index.cfm/2020/9/sen-lee-introduces-nepa-process-accountability-act

[4] “Sen. Lee Introduces NEPA Process Accountability Act” Mike Lee US Senator for Utah. https://www.lee.senate.gov/public/index.cfm/2020/9/sen-lee-introduces-nepa-process-accountability-act

[5] “Sen. Lee Introduces NEPA Process Accountability Act” Mike Lee US Senator for Utah. https://www.lee.senate.gov/public/index.cfm/2020/9/sen-lee-introduces-nepa-process-accountability-act

[6] “Sen. Lee Introduces NEPA Process Accountability Act” Mike Lee US Senator for Utah. https://www.lee.senate.gov/public/index.cfm/2020/9/sen-lee-introduces-nepa-process-accountability-act