New Federal Order Limits Length and Time of NEPA Studies
On August 31, a memo from the Interior Deputy Secretary David Bernhard was made public and directed that the Department’s environmental impact statements (“EIS”) to not be more than 150 pages, or 300 pages if the project is unusually complex. The Interior Department imposed this controversial new restriction citing a need to reduce paperwork. Additionally, the memo imposes a target of completing the studies required under NEPA within one year.
NEPA requires federal agencies to evaluate the potential environmental effects of various proposed projects. Agencies prepare an EIS when a project will have a potentially significant impact on the environment; however, smaller assessments suffice on more minor projects. The Interior Department has stated that about 80 draft and final EISs are issued annually. Moreover, less than one percent of all analyses performed under NEPA go through the entire EIS process.
In his memo, Bernhardt wrote that NEPA’s requirements focus on sound decisions based on informed understand of environmental consequence and “should focus on issues that truly matter rather than amassing unnecessary detail.” If strictly enforced, the new limits could significantly limit documents. For example, the main volume of the final environmental study of California’s proposed WaterFix tunnel plan was more than 16,000 pages when released in December.
The memo also gives Bernhard far-reaching responsibility, allowing the Department to clear “potential impediments” and “streamline” the environmental review process. Environmental groups, such as the Center for Biological Diversity, criticized the Department’s new policy and argued it will do harm to people and wildlife. They claimed this order undercuts NEPA’s fundamental purpose of ensuring public oversight and informed decision-making and instead mandates arbitrary timeframes and page limits. On the other hand, former Interior Deputy Secretary David Hayes noted that “artificial page and time limits have little to do with effective compliance with NEPA” but rather “the quality of the pre-EIS coordination among federal and state agencies, and the quality of outreach to stakeholders and the general public” are much more important.
Bernhard’s memo comes shortly after President Trump’s August 15 executive order, which requires federal agencies to apply NEPA in a way that reduces “unnecessary burdens and delays as much as possible,” among other duties. The order sought to establish “discipline and accountability in the environmental review and permitting process for infrastructure projects.