By Kathryn K. Floyd, a Partner, and Maggie Fawal and Chelsea O’Sullivan, Associates, with Venable LLP in the firm’s Washington, DC office.

The National Environmental Policy Act (NEPA) continues to result in delays to critical infrastructure projects despite streamlining pronouncements under the Obama and Trump Administrations. For example, the Department of Energy recently found that the average time to complete an environmental impact statement (EIS) is 49 months.1 And this process is but one essential part of the steps needed to green light these projects. 

Much of this delay can be attributed to agencies’ efforts to cross every “t” and dot every “i” during the environmental review. Because these projects are often controversial and draw strident opposition, agencies are increasingly risk adverse and seek to meticulously evaluate every possible detail within an EIS. This approach is contrary to law and precedent. As long as an agency demonstrates that it has taken a “hard look” at environmental impacts, courts have historically deferred to agency expertise and decision making. But in Indigenous Environmental Network v. U.S. Department of State,2 the district court’s opinion inappropriately “fly specked” the Department of State’s 2014 EIS for the TransCanada Keystone Pipeline (“Keystone”) and substituted its judgment for that of the agency.3 Such decisions only serve to delay projects even further, wasting agency resources for little to no additional environmental benefit. 

It is a bedrock principle of NEPA that “an agency need not supplement an EIS every time new information comes to light after the EIS is finalized.”4 Instead, a supplemental EIS is required only where the new information shows that the action will affect the quality of the human environment in a significant manner or to a significant extent not already considered.5 The court in Indigenous Environmental Network disregarded this well-established standard, finding that new information related to oil spills and lower-than-expected oil prices necessitated a second supplemental EIS. While it’s true this new information arose after the 2014 EIS was issued, the Department in fact considered the information in its 2017 Record of Decision (ROD) and found that it did not rise to the level of requiring a supplement because such information would not significantly impact the EIS analysis.6 The court did not find otherwise and the plaintiff presented no evidence to support that finding. If anything, the administrative record showed that lower oil prices would lead to fewer environmental impacts.7