On April 21, 2018, the Department of Interior (“DOI” or “Department”)) issued three guidance memoranda to further explain how the Department will work to streamline and expedite reviews under the National Environmental Policy Act (“NEPA”). As a reminder, in August 2017, the Department published an Order requiring DOI to complete reviews under NEPA within one year and restricting the final decision document size to under 150 pages, excluding appendices (“NEPA Order”). Historically, compliance with NEPA has been a lengthy process with multiple agencies involved.
The first, and most significant, memorandum includes a plan for meeting the NEPA Order’s timing and page requirements. See “Additional Direction for Implementing Secretary’s Order 3355.” Pursuant to this memorandum, all outstanding Environmental Impact Statements (“EISs”) with Notices of Intent published before the NEPA Order was issued (on August 31, 2017) must comply with the new limitations. Waivers to the page and timing limitations may be obtained for projects that are “unusually complex,” defined as, among other things, projects with listed species, limited data, environmentally sensitive areas, or multi-jurisdictional. DOI provides guidance on the expected number of pages in each section of a NEPA final document and the anticipated timeline for completing the review within a year. Notably, by providing an opportunity for a waiver for “unusually complex” projects and listing the types of projects that may qualify for the waiver, DOI may have created a significant loophole through which most projects may fall out of the generally-applicable page and timing limitations, thereby limiting the benefits (and risks) of the expedited NEPA process for the majority of projects.
In its memorandum titled “Compiling Contemporaneous Decision Files,” the DOI identifies its use of “Decision Files” as a significant area of improvement in the NEPA process. These files act as the administrative record of the Agency’s NEPA decision-making process and, in the past, apparently were not compiled contemporaneously with the development of agency decisions. To expedite the NEPA process, DOI now intends to compile this record contemporaneously with the DOI’s development of the NEPA record. Additionally, DOI will standardize the Decision Files across the Agency to further their purpose as a “single organized source of information” for the Agency’s consideration of a project. The memorandum then lists all the information that must be placed into the Decision Files. This information includes options considered and rejected by the agency, all relevant communications within the agency, and all the materials relied upon by the decisionmaker, including the relevant statutory and regulatory requirements applicable to the Agency.
The last document, titled “NEPA Document Clearance Process,” concerns the internal coordination to properly label internal NEPA documentation to facilitate its efficient review by different groups within the Agency.
The Memorandums’ Significance:
This compilation of NEPA guidance memoranda demonstrates DOI’s continued focus on streamlining the NEPA process. It also fleshes out important details on the timing for implementation of the new process as well as when additional pages and time may be sought for “unusually complex” projects. Nevertheless, by broadly defining “unusually complex” projects, the guidance may end up carving out a significant number of projects from the expedited NEPA process.