Quicker But Less Dirty: The Biden Administration Both Streamlines and Seeks to Expand NEPA Environmental Review

AuthorBy Elaine Y. Lee and Athena G. Rutherford
THE CONSTRUCTION LAWYER 17Volume 41, Issue 4, 2022
Quicker But Less Dirty:
The Biden Administration Both
Streamlines and Seeks to Expand
NEPA Environmental Review
By Elaine Y. Lee and Athena G. Rutherford
Any construction project associ-
ated with a federal agency such
as the Department of Trans-
portation or Federal Transit
Administration must comply
with the requirements of the
National Environmental Policy
Act (NEPA). With the surge
of new and upcoming infra-
structure projects funded by
the federal government, con-
tractors pursuing and working
on projects that require NEPA
compliance must understand
this nuanced, complex law and
its potential impact. This article
provides a high-level overview
of NEPA, its origins and cur-
rent framework, criticisms, and
prior administrations’ attempts to reform the law. It then
examines two sets of changes to NEPA proposed by the
Biden Administration that are arguably diametrically
opposed. One set of changes recently passed as part of the
Infrastructure Investment and Jobs Act (the Infrastruc-
ture Bill) streamlines the NEPA process; the second set of
changes is still in the review process and seeks to expand
the substantive environmental protection goals of NEPA.
Infrastructure Bill Streamlines NEPA and CEQ
Proposed Rule Modif‌ications Expand the Scope of
NEPA Review
On August 10, 2021, after months of deliberation, the U.S.
Senate passed the Infrastructure Bill in a bipartisan vote,
and on November 15, 2021, President Biden signed the
Infrastructure Bill into law. Key provisions of the $1.2
trillion, 2,000-page1 Infrastructure Bill include funding
for upgrading domestic water supply, roads, bridges, and
broadband and cybersecurity infrastructure, among oth-
While the Infrastructure Bill primarily focuses $550
billion on “hard infrastructure” spending,
among the
Bill’s major plans for infrastructure are sweeping changes
to NEPA.
The Infrastructure Bill has gained signicant attention
for its environmental provisions, including those that are
designed to streamline the review process under NEPA.
The latest iteration of changes to NEPA illustrate the
Biden Administration’s attempt to remedy commonly
argued shortcomings of the law through lasting changes
that will withstand the turnover of future administrations.
At the same time, on October 6, 2021, the White
House Council on Environmental Quality (CEQ) pro-
posed modications to its regulations for implementing
NEPA. The explicit goal of these modications is to undo
changes made by the Trump Administration that nar-
rowed the scope of environmental review under NEPA.
The proposed modications would restore emphasis on
the environmental protection goals of NEPA. The CEQ
has also indicated it would issue a second round of NEPA
rule changes to further expand the scope of NEPA’s envi-
ronmental review.
Changes to NEPA impact contractors and consultants
who are engaged directly to assist with preparation of
NEPA documents. Trends in the construction industry
toward design-build projects mean the NEPA process
can delay construction and increase the cost of projects.
Though the Biden Administration’s changes and pro-
posed rule changes are intended to improve the NEPA
process, the effect of the changes in the Infrastructure Bill
and the proposed CEQ rule changes leave a lot uncertain.
Nonetheless, they should provide greater clarity for con-
tractors working on projects that require completion of
the NEPA process.
NEPA Origins and Current Framework
Under the Nixon Administration, the Environmental Pro-
tection Agency (EPA) was charged with protecting the
environment, which included authority to monitor the
nation’s water quality, pollution, and the effects of chem-
icals upon sh and wildlife.4 This national commitment
to the protection of the environment was memorialized
by the passage of NEPA in 1969.5
NEPA, commonly referred to as the “look before you
leap” law, established a nationwide environmental policy
framework for planning and decision-making with respect
to federal agencies. NEPA’s rules apply to a broad range
of federal actions, such as federally funded construction
Elaine Lee
Athena Rutherford
Published in
The Construction Lawyer
, Volume 41, Number 4. © 2022 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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