Categorical Exclusions Aren’t Enough

We need actual exemptions

Over the last few years, I've increasingly realized that policymakers think that a categorical exclusion (CX) means that a project doesn't have to go through NEPA.

They could be forgiven for thinking this – after all, CXs are what have historically been used to exempt the vast majority of federal actions from the full NEPA process, from CXs for picnics to CXs for hiring.

But in reality, the development of CXs back in 1978 came about after a decade in which NEPA's scope had expanded far beyond its original intent. They represented, in essence, a tacit admission by the Council on Environmental Quality that every Federal action was a "major Federal action" – and that therefore everything should go through NEPA.

CXs, then, are very much still NEPA.

The development of a CX itself can be sued: see Sierra Club v. Bosworth, where the Ninth Circuit struck down the Forest Service's Fuels CX that authorized certain wildfire protection activities.

The application of a CX can be sued, too. This is especially true with "extraordinary circumstances" – conditions that trigger additional environmental review despite a project falling within a categorical exclusion category.

And indeed, even without litigation, CXs can drive lengthy processing times. Many agencies require extensive documentation before approving a CX, including specialist reports, surveys, and analyses to verify the absence of extraordinary circumstances. A geothermal developer recently told me that their CXs were routinely taking 6 months to process.

Comprehensive CX timelines are next-to-nonexistent, but a quick survey of geothermal CXs on BLM's e-NEPA Register seems to confirm this. A recent CX for geothermal temperature gradient wells took at least five months. Another temperature survey CX took nine months. And a CX for a magnetotelluric survey took a whopping twenty months – more than a year and a half.

All of this, despite the fact that the goal of CXs is to exempt a category of actions from NEPA. We should actually achieve this goal – either by redefining what categorical exclusion means, or by designing a more true-to-form NEPA exemption process.

These exemptions could function somewhat akin to a registration permit under the Clean Air Act: you self-certify up front that you meet a few basic standards and thresholds laid out in the exemption, and then proceed. If you're later found to have violated these standards, you should be hit with a lofty fine (it is, of course, still very much the developer's responsibility to not have an environmental impact.)

This approach would maintain environmental protections while significantly reducing procedural delays. True exemptions would establish clear, objective criteria that, if met, would allow projects to proceed without agency review. And of course, all of these projects would still be subject to the many substantive environmental laws that cover American industry.

In short: CXs aren’t quite the permitting reform tool they’re often assumed to be. As we look to streamline NEPA to speed up infrastructure deployment, we need a system that actually delivers the time savings that CXs were intended to provide.