The National Environmental Policy Act is a fixture of federal environmental law. While the underlying statute has not been substantially altered since its passage in 1970, every year it is the subject of numerous court decisions. Moreover, NEPA often impacts major infrastructure projects and provides opportunities for disputes over large issues of environmental policy to erupt during the review of individual federal decisions. The following article examines some of the recent trends in NEPA case law from the past year that will impact NEPA practice moving forward.
Streamlining NEPA — The FAST Act Title XLI
The single biggest development under NEPA last year was the passage, with bipartisan support in both the House and Senate, of the Fixing America’s Surface Transportation Act. This act, which was signed into law by President Obama in early December, provides $309 billion for highway funding over the next five years. The FAST Act also has the potential to streamline the NEPA process for what the act defines as “major infrastructure projects.”
The delay and cumbersome nature of both the federal and state environmental review processes have been the subject of significant and repeated criticism over the years, with the drum beat for reform intensifying recently. Environmental reviews for major projects can drag on for years at increased cost to both project sponsors and taxpayers due to the absence of statutory time frames, lack of agency resources, interagency conflict, and skilled and well-financed project opponents. As a result, necessary improvements, ranging from improved mass transit corridors to necessary public utilities expansions, often fail to come to fruition or take an inordinate amount of time before construction may commence.