NEPA Streamlining Legislation Proposed in Congress (HR 4377)

On April 18, 2012, Congressman Dennis Ross (R-Fla.) introduced new federal legislation to streamline the permitting process under the National Environmental Policy Act (NEPA). The legislation, known as the "Responsibly and Professionally Invigorating Development (RAPID) Act" (HR 4377), sets forth ambitious NEPA amendments that would affect the federal environmental review process in important ways.

In broad terms, the Bill is designed to shorten the NEPA process, stiffen the requirements for challengers to bring NEPA claims to court, and expand federal agencies' ability to rely on environmental documents from other agencies, including state agencies, to satisfy NEPA. The Bill's current version would achieve these goals through the following:

● Allowing federal agencies to rely on environmental documents produced under state laws and procedures, if such laws and procedures are functionally equivalent to NEPA.

● Requiring agencies to affirmatively join a NEPA process as participants, or be precluded from later commenting on or opposing a project.

● Restricting feasible alternatives to those that can "actually be undertaken" by the project sponsor (which, notably, could preclude consideration of off-site alternatives).

● Allowing federal agencies to adopt project-level documents from "similar" projects in geographic proximity, that were reviewed under NEPA or qualifying state procedures in the previous five years.

● Imposing a two-year deadline for completing an EIS and issuing a Record of Decision (ROD), and one year for an EA and Finding of No Significant Impact (FONSI). Various extensions can lengthen the full EIS/ROD process to 4.5 years.

● Requiring project approval to be decided within 90 days after NEPA processing ends, or else the project would be deemed approved.

● Establishing a 180-day deadline to file a lawsuit challenging a NEPA process; further, to be entitled to sue, the petitioner must have commented during the environmental review on the issues being challenged.

For California projects, one of the Bill's more interesting elements is the effort to consolidate NEPA and state environmental review processes. The Bill would require a federal agency to adopt a state environmental document, if the state's laws and procedures are "substantially equivalent" to NEPA. This appears to be a clear effort to eliminate the potential for overlapping processes in states having NEPA-like requirements. California's CEQA is one of the foremost state procedures likely to meet this requirement, as CEQA was founded on NEPA but has evolved to become more stringent in certain respects.

Not surprisingly, California transportation agencies offered their support for the Bill in an April 25, 2012 hearing before a House Judiciary Subcommittee. The Bill also received strong support from the U.S. Chamber of Commerce, and can be expected to earn favor from pro-business organizations generally. On the other hand, the Bill is likely to generate a negative reaction among environmental organizations, which tend to view such proposals as an effort to weaken NEPA's environmental protections.

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