October 2017 - Proven Strategies for Expediting National Environmental Policy Act (NEPA) Reviews

Several administrations have made attempts to "streamline" the NEPA process, and in January of this year President Trump issued Executive Order (EO) 13766 Environmental Reviews and Approvals for High Priority Infrastructure Projects, followed in June by EO 13807 Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects. The goal of these efforts is to reduce the overall timeline for environmental reviews, with an emphasis on optimizing efficiency, interagency coordination, and reducing unnecessary burdens. In response to the President's Executive Orders, in September 2017, the Council on Environmental Quality (CEQ) issued an "initial list of actions" it will take to enhance and modernize the federal environmental review process, which includes development of a framework for implementation of "One Federal Decision," new guidance for implementing NEPA, and a review of existing CEQ implementing regulations to identify needed changes and clarifications. However, the implementation of these new Executive Orders and related changes to review processes, guidance, and potential regulatory changes will ironically take some time.  

Waiting for future improvement may not be the answer if you have important and time-sensitive projects now. So, from a practical sense, what can be done under the current framework to expedite the environmental review process? This article explores this topic, focusing on common root causes for delays and proven practitioner-level strategies that help gain efficiency and time completing the NEPA process.

The National Environmental Policy Act

The National Environmental Policy Act of 1969 (42 U.S.C. §§ 4321, et seq.) requires federal agencies to consider environmental consequences of their actions in the decision-making process. As federal actions can include agency approvals (e.g., permits) and funding decisions (e.g., loan guarantees or financial support), both private sector and federal projects can be subject to NEPA reviews. In simple terms, this normally means the preparation of an Environmental Assessment (EA) to determine if there is potential for significant impacts, or an Environmental Impact Statement (EIS) when the potential for significant impacts is present. The CEQ, which promulgated the regulations implementing NEPA, suggested timelines of 3 months for an EA and 12 months for an EIS in its' 1981 memorandum issued to federal agencies "Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations." Yet these timelines are rarely met.

Thus, NEPA has been criticized for leading to unnecessary delays in project implementation and hindering the government's and private sector's ability to conduct business. On the surface, some of this criticism appears justified. A recent study by CEQ, reported in the September 2017 edition of the Department of Energy's quarterly NEPA newsletter, determined that for EISs completed in 2016 the government-wide median time from Notice of Intent to Record of Decision was 4.1 years. Similarly, a survey published by the National Association of Environmental Professionals (by Piet and Carole deWitt) of all federal EISs completed in 2014 found the average length of time to complete an EIS was 4.7 years. At the EA level, a study by the Federal Highway Administration found an average completion time of 14 months. These durations are well outside the timelines suggested by the CEQ.

Why NEPA Reviews Can Take So Much Time

What is not clear in the statistics for NEPA review timelines is whether NEPA was actually the root cause or whether other factors related to project planning, public controversy, approvals, or other outside forces played a role in elongating the process. In our experience, the answer varies, as there are many non-NEPA factors that can extend the overall project schedule and thus the completion of the NEPA process. While it is certainly not typical, there are examples of EAs and EISs that have met the recommended CEQ timelines, which would indicate the extended length of most reviews is not inherent to the process.

So, what are some of the primary factors that may lead to an overall longer NEPA schedule?

What is the Project?  This may seem like a very basic question, but it is surprising how often the NEPA process can be initiated when the project is conceptually understood but not defined sufficiently to conduct an impact analysis. The lack of a defined project can lead to prolonged NEPA schedules in several ways. First, the NEPA clock can start ticking even though the review is on hold until the project plans and alternatives (i.e., the what, where, and when) are worked out. This is often the case for large infrastructure projects that have many components such as access roads, utility lines, and other ancillary facilities. Secondly, in a rush to get the NEPA process complete, preparation of the NEPA document is hastily initiated only to be subject to multiple rewrites and revisions to account for new project details and alternatives as they incrementally reveal themselves in the planning process. This second cause, where NEPA gets ahead of the project, can prove not only time consuming but also costly. Lastly, key information such as planning, feasibility, or technical studies that are needed for the project (not just NEPA) are not contemplated or completed in a timely way. The lack of such information can lead to delays in moving forward with the NEPA process until such data is available.

Are the Issues Defined?  Scoping is an important part of the NEPA process and should be performed early. Internal scoping, which is done before the formal public scoping is initiated, can often identify information on the project that is needed to perform a NEPA analysis, as described above, as well as help identify the important issues that should be considered and those topics that don't require emphasis or detailed analysis. The latter, which can greatly reduce the overall level of effort for preparing a NEPA document, is often overlooked. The internal scoping process, is also important for ensuring a mutual understanding of the project and the approach to the NEPA analysis amongst the agency, contractors, project proponent, and other stakeholders. A mutual understanding is important for reducing internal conflicts or disagreements occurring late in the process when a NEPA document is substantially complete. The scoping process also helps identify issues important to the public, state and local agencies and officials, and other interested parties (especially those that may be in opposition). Many delays in the NEPA process can be attributed to new issues that arise late in the process that could have been identified through more rigorous scoping.

What are the External Forces? In addition to defining the project and obtaining the necessary data to support a NEPA document, there are many external forces that can introduce challenges to completion of the NEPA process. One external factor can be organized public and political opposition that can prolong the scoping process, result in the addition of new alternatives, generate administrative and technical burdens related to addressing a high volume of comments or technical concerns, and generate increased levels of document scrutiny within the agency. Increased scrutiny can create an environment where schedules are extended in the pursuit of preparing a perfect document, versus a high-quality document that supports the decision-making process. Similarly, delays in obtaining required input or approvals from other government agencies can affect the overall NEPA timeline. The potential for these delays can often be minimized by appropriately integrating these agencies into the NEPA process, but other factors such as workloads and staffing levels within an agency, or specific data requirements of the agency (e.g., the need for time of year dependent studies) can result in project delays. Furthermore, issues related to project feasibility including financing, siting, and other technical feasibility issues that are not related to NEPA can result in projects being placed on hold while these issues are resolved - yet, the NEPA clock keeps ticking. And lastly, sometimes certain projects are simply not a high priority for the project proponent, and there is not a significant driver for completing the project and the NEPA process in a timely manner.

Strategies that Reduce the Overall Timeline

Most projects subject to an EA or an EIS process have their own unique challenges, although many are relatively straightforward and should be able to be completed in a reasonable amount of time. However, aggressive schedules are also attainable for even complex and challenging projects under the right circumstances and when NEPA is effectively executed. Projects that break the norm for crossing the finish line early usually have the following attributes: leadership emphasis and attention within the lead agency; a strong federal NEPA manager; and an experienced and capable NEPA support team that employ some, if not all, of the following techniques.

Clearly Defining the Project and Decisions to be Made.  The first step in ensuring schedule success is to not start the race before it begins. This is an area where the federal NEPA manager can really make a difference by ensuring the project is reasonably defined and there is a clear understanding of the purpose and need and decisions to be made, before formally initiating the process. In addition, having an experienced NEPA team on board can ensure that aspects of the project needed for the NEPA analysis are well defined, that uncertainties for the project are identified and reasonably bounded, and that environmental factors are incorporated as part of early project planning in order to minimize potential for environmental impacts and issues (e.g., avoiding sensitive resources to the extent practical). With clear project definition and agency action, the NEPA team can start the process with a solid foundation upon which everything else in the process is built. This minimizes the potential for project starts, stops, and rework, and is the first step to completing the process in a timely manner.

Focus and Prepare a High-Quality Document. The next step, whether preparing an EA or EIS, is to use rigorous scoping to focus the analysis and document. Scoping should include soliciting input from internal stakeholders and appropriate resource specialists to identify key constraints or issues, and the anticipated level of analysis for each resource being considered. For EIS-level actions, and certain EA actions, scoping also involves early solicitation of external agency and public comments. Although scoping may seem like just another task that adds to the NEPA timeline, when done effectively it can substantially reduce the potential for delays later in the process, and thus reduce the overall time for an agency to issue a Finding of No Significant Impact (FONSI) or Record of Decision (ROD). Effective scoping essentially helps develop a "sliding scale" for the NEPA analysis. A "sliding scale" focuses the document and analytical efforts on the issues and areas where impacts are a primary concern, while minimizing the time and effort spent on issues of little importance or that have low to no potential for impacts. A clear project definition and effective scoping are critical steps to developing a focused and high-quality NEPA document. Additional measures that improve quality include the use of seasoned NEPA practitioners, established methodologies for impact analysis, and strong technical and editorial quality assurance and quality control procedures. Producing a high-quality document will inherently save time as it reduces internal review processes, the number of revision cycles and agency approvals, and can reduce the potential for significant comments or issues arising during public review.

Proactively Manage Project Risks and External Forces.  Finally, it is important to identify and manage schedule risks. There are inherent schedule risks under NEPA because the process involves so many parties, including: the project proponent and their design team; lead agency decision makers, general counsel, NEPA managers, environmental staff, and public affairs; cooperating agencies; environmental consultants; external or reviewing agencies; interest groups; and the public. There are different points throughout the process where each of these parties can introduce circumstances that could cause a delay in the project schedule or the NEPA process (e.g., the project proponent making significant design changes). In addition, for controversial actions, project opponents may intentionally attempt to use the NEPA process to delay a project by challenging various aspects of the process or document. As previously described, ensuring a clear project definition and conducting effective scoping are activities that can help mitigate schedule risks in several areas. However, there are many other factors that can introduce delays, of which more common causes include internal and external review cycles, agency approval processes, and external agency reviews and approvals.

To mitigate risks related to internal and external review cycles, it is important that clear expectations are communicated to reviewers, and that commitments to adhere to established review timeframes are secured. Effective tactics include holding upfront briefings with government and contract personnel on the methodologies being used for the NEPA analysis, the review cycle process and timeline, and establishing a clear line of responsibility for document reviews and government approvals. A best practice is to also assign an individual within the federal agency to be responsible for deconflicting internal comments and determining which comments need to be addressed by the contractor. A capable federal NEPA manager with the support of agency leadership is instrumental in effectively implementing these measures and ensuring reviewer commitments are secured. These measures help reduce the timeframe of reviews and the number of review cycles ultimately needed. It is important that agency decision makers are briefed early and often on the project and key issues, and provide early feedback on concerns they may have. Similarly, to mitigate risks related to the involvement of cooperating and participating agencies, it is important to conduct early coordination/briefings with these agencies, and continue such informal coordination throughout the process. These efforts will help identify the agencies' special concerns, requirements, or expectations and allow the NEPA team to resolve those items prior to the formal public comment period. Early and effective external coordination will help limit adversarial comments on the completed document and allow for parallel integration of other consultation processes (e.g., Section 7 of the Endangered Species Act and Section 106 of the National Historic Preservation Act) with the NEPA process, thus reducing the risk of project delays.

PHE has been preparing NEPA documents for large scale infrastructure and defense projects in support of federal and private sector clients for more than 25 years. If you have any questions or comments regarding this article or recommendations for topics to be addressed in future articles, please feel free to contact Fred Carey, P.E. (301.907.9078 ext. 3003, fredc@phe.com) or Robert Naumann (443.668.5050, Robert.Naumann@phe.com).