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Energy Policy Act of 2005 Provisions For Expediting Permitting and NEPA Compliance

Carolyn L. McIntosh, Laura Lindley, The Energy Policy Act of 2005 (2005)

A. Federal lands comprise about 29% or 654 million acres of the 2.27 billion acres within the United States. Forest Service -- about 193 million acres; Bureau of Land Management (BLM) -- 262 million acres and 700 million acres of subsurface minerals. 1

B. NEPA was signed into law on January 1, 1970 by President Richard M. Nixon. The law is concise (particularly relative to subsequently adopted environmental laws), merely three pages long. It has been characterized as “our basic national charter for protection of the environment.” 2

C. Yet, NEPA has been the subject of increasing criticism 3 and has been the foundation for an estimated 1,500 lawsuits. Indeed, on the occasion of NEPA's thirty-fifth anniversary, the Environmental Law Institute (ELI) examined current trends in NEPA caselaw and found, inter alia, that the rate of new NEPA litigation has increased significantly in the last several years. 4

D. The ELI study evaluated all NEPA cases and found: “[t]here had been a general declining trend in the number of NEPA lawsuits filed annually, with a historical average of 108 filings per year between 1974 and 1997. However, the number of filed NEPA cases spiked to 137 in 2001 and 150 in 2002.”

The Energy Policy Act of 2005 made a number of direct modifications to NEPA, including specifying important categorical exclusions for oil and gas leasin