MEMORANDUM

To: Executive Director

Subject: NEPA State Assignment Expansion Act of 2020
Date: September 28, 2020

Director:

The following provides a summary and analysis for The NEPA State Assignment
Expansion Act of 2020, S. 4312, 116th Cong. (2020). The bill was proposed in the Senate this
summer and referred to the Committee on Environment and Public Works.

Summary of The NEPA State Assignment Expansion Act of 2020

This bill proposes adding a provision to Title I of the National Environmental Policy Act
of 1969 (NEPA). The added provision would require the head of each Federal agency to
establish a “project delivery program” for which all states are eligible. The program would allow
any Federal agency to assign and any state to assume the Federal agency’s NEPA obligations for
one or more projects under the Federal agency’s jurisdiction.

Project Delivery Program

The bill does not propose any alterations to existing NEPA obligations. Rather, it
proposes an avenue for allowing Federal agencies to assign existing obligations to states that
voluntarily assume the obligations, provided the agencies meet minimum requirements.

The proposed bill sets minimum requirements for the project delivery program and
defines the scope of obligations that may be assigned and assumed. The bill sets minimum
requirements for the program by establishing a mandatory process. According to § 105(b)(2)(A),
upon request of a state, the head of each Federal agency must enter into a written agreement in
which the head of the Federal agency may assign, and the state may assume NEPA obligations
unless an exception applies. When an exception applies the head of the Federal agency cannot
enter into the agreement. (§ 105(b)(2)(B)). An exception applies when the head of the Federal
agency determines the state’s application does not comply with regulatory requirements, the state
does not have the capability, including financial and personnel, to assume the responsibility, or
the head of the State agency did not enter into a written agreement with the head of the Federal
agency. (§§ 105(b)(2)(B), (c)(4)).

This bill does provide an amendment to 23 U.S.C. § 327. This law already established a
project delivery program for highway projects. This law has similar language to the proposed
bill, but the proposed bill expands the program that currently only applies to highways to all
projects within a Federal agency’s jurisdiction. For this reason, the proposed bill includes
language to harmonize the existing law with this proposed law.

1
 A. Minimum Requirements

The regulatory requirements are established in section 105(c)(2). Under this provision,
after the bill’s enactment, the head of the Federal agency must amend the agency’s regulations,
as appropriate, to establish the necessary information that must be included in any application. At
a minimum, these regulations must address the requirements relating to information concerning
the projects or classes of projects for which the State anticipates exercising authority, verification
of the financial resources necessary to carry out the authority, and evidence of the notice and
solicitation of public comment by the State relating to the participation of the State. These
minimum requirements highlight how the bill incorporates mandates with significant discretion
to the head of the Federal agency.

B. Scope of Assignment and Assumption

The written agreement defines the scope of the obligations that may be assigned or
assumed according to the bill. Under § 105(b)(2)(C) the agreement may allow assignment and
assumption of all or part of the Federal agency’s NEPA obligations or responsibilities for
environmental review, consultation, or other action under any Federal environmental law except
the conformity determination of the Clean Air Act. Any responsibility not assigned in the
memorandum remains the responsibility of the Federal agency. (§ 105(b)(2)(E)). However, under
§ 105(b)(2)(D), once the state assumes a responsibility it must follow the same procedural and
substantive requirements as would apply to the head of the Federal agency. According to §
105(c)(5), if the head of the Federal agency would have been required to consult with another
Federal agency, the head must consult the other agency before approving the state’s application.

The written agreement is also the document in which the state certifies to the head of the
Federal agency that it has met its obligations for the assumption. In § 105(d) the requirements of
the written agreement are defined. These obligations include, among others, a certification that
the state’s laws authorize the governor or top-ranking official to consent to the voluntary
assumption of responsibilities. (§ 105(d)(3)(C)). The agreement must also contain a provision
that the state expressly consents to the jurisdiction of the Federal courts for the compliance,
discharge, and enforcement of any assumed responsibility thus waiving the state’s sovereign
immunity. ((§ 105(d)(3)(B)).

2
 Analysis

While the proposed bill does not propose any amendments to current NEPA obligations,
allowing Federal agencies to assign and states to voluntarily assume NEPA obligations will have
significant impacts on the current NEPA landscape.

Proponents of the bill likely argue that assignment and assumption theory will make the
NEPA process more efficient. If the bill passed, states would have the ability to accept
responsibility for the environmental review process. The overall review process for projects or
classes of projects the states became responsible for might become quicker because states are
only handling the responsibilities for those projects instead of the Federal agency that is handling
every project.

States may be in a better position to be responsible for NEPA obligations. States do have
an interest in protecting the state’s environment, and the state might have an easier time
communicating with different actors within the state. The public might also have an easier time
expressing its comments throughout the environmental review process. States operate on a
smaller scale, which may give the public more access to the system. This may encourage
participation and elicit important conversations.

Further, the states are still subject to oversight from the Federal agencies. Even after the
agencies enter into the agreement, § 105(h) of the bill mandates annual audits of the state for the
first four years of the agreement that cannot last five years. Under this section, the audit team is
assembled by the Federal agency with state consultation. Thus, when the states assume
responsibility it is not an unchecked assumption.

Those who oppose the bill likely argue that the Federal agencies are in the best position
to conduct NEPA review. The biggest argument for opposing the bill is likely that the
environment does not pertain just to one state. NEPA review requires an agency to take a “hard
look” at all the environmental impacts of an action. States may have a much harder time
obtaining access to all the necessary information.

Section 105(l) of the bill does allow for the head of a Federal agency to “carry out
education, training, peer-exchange, and other initiatives as appropriate” to help states with the
program and promote information sharing among the states. These initiatives, if the head of the
Federal agency, chooses to conduct any, may help the communication issue. However, not every
Federal agency will conduct the initiatives and crucial information might easily slip through the
cracks.

For the Center for Western Landscapes, this fragmentation issue will be the biggest
obstacle should the bill pass. The Center’s responsibility is the entire American West. If the bill
passes and states begin making assignment and assumption agreements, the Center will have to
start working with each state individually. This could hinder the Center’s goals and cutoff
important resources to decision-making agencies.

3
 Recommendation

The Center for Western Landscapes should recommend that the bill provide more
uniform guidance before the bill passes. As the bill currently stands, it incorporates significant
discretion to the head of the Federal agency and could allow crucial information to be missed.

While the head of the Federal agency does need to maintain some discretion concerning
assignment and assumption of NEPA obligations, the way the bill is currently written creates
confusion. Currently, the bill mandates certain actions but what the action is, is left to the
discretion of the head of the Federal agency. For example, in § 105(c)(2)(B) the head of the
Federal agency is required to amend regulations about what information concerning a state’s
financial ability needs to be in the application. Then in § 105(c)(4)(B) the head of the Federal
agency determines whether the state can meet its financial obligations. If the head of the Federal
agency sets guidelines that do not allow the state to show it meets its financial obligations the
state will not qualify for the program. This disqualification will be completely in the hands of the
head of the Federal agency who set the guidelines and made the determination.

The bill also needs to define more and better communication methods between agencies
and protection organizations like the Center. Section 105(l) that allows the head of a Federal
agency to take educational initiatives should be mandated and perhaps even a condition of
participation. Overall, the bill needs to be flushed out more before it is passed.