Between 2009 and 2011, the U.S. Department of Energy (DOE) implemented a series of related reforms to enhance the transparency and effectiveness of its use of categorical exclusions to comply with the National Environmental Policy Act (NEPA). These reforms were prompted by the American Recovery and Reinvestment Act of 2009 (Recovery Act), which tasked DOE with distributing more than $35 billion (more than DOE’s annual budget) in a very short time. From the start, DOE was committed to integrating NEPA into the decision making process for obligating these funds. But the workload and time sensitivities demanded that DOE look beyond business as usual. DOE had to improve its performance.
During the first few months of soliciting and reviewing grant applications and other proposals for use of Recovery Act funds, DOE realized that a large number of proposed actions would appropriately qualify for categorical exclusion determinations. Categorical exclusions are classes of actions that DOE has by regulation determined do not individually or cumulatively have a significant effect on the human environment and, therefore, normally require neither an environmental impact statement (EIS) nor an environmental assessment (EA). Determining that a categorical exclusion applies to a proposed action is generally the simplest and fastest form of environmental review under NEPA and can often be completed in several weeks or less compared to several months or a year or more for an EA or EIS. Ultimately, DOE reviewed and made categorical exclusion determinations for almost 10,000 Recovery Act proposals over about two years. This success was enhanced by and led to the following reforms that were initiated during the fourth quarter of 2009.
- Simplifying NEPA compliance for state and local governments. More than $6 billion in Recovery Act funds were targeted to state and local governments for small-scale energy efficiency and renewable energy projects, ranging from weatherization to wind power. DOE prepared a template that summarized the relevant projects that normally would qualify for categorical exclusions under DOE’s NEPA regulations. DOE worked with state and local agency staff to help them align proposals with the template. This allowed completion of NEPA review in a timely manner, while saving thousands of hours of federal, state, and local government staff time. For example, the template allowed DOE to complete a single NEPA review for a subgrant program with defined limits that ensured any actions normally would qualify for a categorical exclusion determination. In a subgrant program, a state would divide a DOE grant among several proposals submitted directly to the state; these proposals could be received during a single solicitation or as part of an ongoing program over several years. By completing a NEPA review of the entire subgrant program, DOE does not need to review each proposed project independently, thus avoiding repetitive effort, and saving time and money.
- Providing timely answers to questions about NEPA. DOE established a “hotline” website managed by the Office of General Counsel, through which DOE received questions about NEPA compliance for Recovery Act projects via email. The Office of General Counsel efficiently found answers to these questions, be they project specific or general, and made every effort to respond within 72 hours. Many of the questions were about the use of categorical exclusions.
- Posting categorical exclusion determinations on the web. DOE established a policy to document and post on the web most of its categorical exclusion determinations. This substantially increased the transparency of DOE’s NEPA implementation. It also improved efficiency, enhanced public participation in the regulatory process, and saved money by making it simpler to find information supporting DOE’s decisions.
- Updating DOE’s categorical exclusions. The intense focus on use of categorical exclusions highlighted the opportunity to update DOE’s NEPA regulations to better fit the range of DOE actions that had emerged since those regulations were revised in 1996, accommodate advances in technology, and incorporate the current understanding of potential environmental impacts. DOE approached the revision of its regulations as a way to immediately build upon the lessons being learned through decisionmaking for Recovery Act and other funding decisions. The result was the establishment of 20 new categorical exclusions and the updating of many others.
These efforts to improve DOE’s use of categorical exclusions involved multiple DOE field offices and several organizations within DOE headquarters. DOE received input from funding recipients and, in some instances, from the public. The rulemaking engaged the Council on Environmental Quality and other federal agencies, and generated information that other agencies have incorporated into their own rulemakings for improving NEPA regulations. DOE staff involved in the efforts were recognized through multiple awards from the Office of General Counsel and from one of the DOE offices responsible for Recovery Act funding. The impact of the efforts will be felt beyond the Recovery Act. The new categorical exclusions will continue to be available for future projects, and DOE is currently reviewing the template to make it appropriate for funding programs going forward.