Permitting Reform Hitches A Ride On Debt Ceiling Legislation

• Published date: 11 December 2023
• Subject Matter: Environment, Energy and Natural Resources, Energy Law, Environmental Law, Oil, Gas & Electricity
• Law Firm: Marten Law
• Author: Shannon E. Nelson

The proposed debt ceiling bill, the Fiscal Responsibility Act,¹ incorporates a revised version of Rep. Garret Graves' (R-La., 6th Dist.) "Building United States Infrastructure through Limited Delays and Efficient Reviews" (BUILDER) Act of 2023 (formerly H.R. 1577), which was included in its entirety in the House Republicans' debt ceiling bill passed in April.² Although the proposed bill was largely modeled after H.R. 1577, it differs from the original text in significant ways.

Increased Interagency Coordination and Efficiency

The proposed bill creates a framework for coordination of environmental review under the National Environmental Policy Act ("NEPA") between federal agencies which would result in the creation of a single environmental review document for each project and would impose page limits on that document'capping all but the most complex environmental impact statements at 150-pages and capping environmental assessments at 75-pages.³ For projects that involve multiple federal actions across different agencies, the relevant agencies would be required to designate a lead agency based on the magnitude and duration of each agency's involvement, as well as their relative expertise concerning the proposed action's environmental effects.⁴ The lead agency would then be responsible for stewarding the project through the environmental review process and preparing the environmental review document.⁵

The bill also creates enforceable deadlines for the completion of environmental review based on a project's anticipated impact. For projects for which the lead Federal agency determines an environmental impact statement is required, the agency has two years to complete the review, from the notice of intent to prepare an environmental impact statement to the record of decision.⁶ For projects which require only an environmental assessment, the agency has one year to complete the review.⁷ If an agency were to miss the deadline, the delayed project's sponsor may seek a court order requiring the agency to act as soon as practicable, not to exceed 90 days from the date on which the order was issued.⁸ This differs from the enforcement mechanism in H.R. 1577, which would have required a delinquent agency to pay $100 per day to the project sponsor until a new deadline was set.⁹

Unlike the previous iteration of the BUILDER Act, however, the proposed bill does not alter the existing six-year statute of limitations for judicial review of most agency actions under NEPA.¹⁰ This is significant because reducing the length of the time in which an agency action can be challenged was a goal of several of the permitting reform bills that have been introduced in Congress, including the BUILDER Act.

To further encourage efficiency in the review process, the permit provisions in the Fiscal Responsibility Act (Title III) allow existing data sources to be incorporated into an...