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

• Author: By Elaine Y. Lee and Athena G. Rutherford
• Pages: 17-26

THE CONSTRUCTION LAWYER 17Volume 41, Issue 4, 2022

NEPA IN THE TIME OF BIDEN

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-

ers.

2

While the Infrastructure Bill primarily focuses $550

billion on “hard infrastructure” spending,

3

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.