latively lighter lift would be to increase agency funding to more expeditiously draft and review NEPA analyses. To expedite the NEPA litigation process, Congress could also direct that NEPA judicial appeals should be prioritized.If, on the other hand, we continue to allow the NEPA process to consume itself, we will surely fall behind target objectives in U.S. Energy Transition efforts.The need for NEPA reform is here, and some limited progress has been made. But more can be done, including more holistic permitting reform in Congress, without which, the most effective change is unlikely. And inaction, or as NEPA would say—selecting the no-action alternative—is a decision in and of itself, and it is a consequential decision at that.1See Adelman & Glicksman, Presidential and Judicial Politics in Environmental Litigation, at 38 (2018) (median duration of a NEPA case is approximately two years, with 25% of cases taking more than 3.2 years).2See, e.g., NEPA Implementing Regulations Phase 2, 88 Fed. Reg. 49,924, (Proposed July 31, 2023) (proposing that “an agency should consider short-term construction-related GHG emissions from a renewable energy project in light of long-term reductions in GHG emissions when determining the overall intensity of effects”).[View source.]

IntroductionOn July 31, 2023, the Council on Environmental Quality (“CEQ”) proposed the Bipartisan Permitting Reform Implementation Rule (“Proposed Rule”), 88 Fed. Reg. 49,924 (July 31, 2023), which is better known as Phase 2 of the Biden Administration’s revisions to the regulations that implement the National Environmental Policy Act (“NEPA”).NEPA imposes a procedural requirement that does not mandate outcomes, only informed decision making. Despite its procedural nature, NEPA is one of the primary mechanisms for project opponents to challenge projects and is the most litigated federal statute. CEQ describes the changes in the Proposed Rule as promoting efficient and effective environmental review while increasing regulatory certainty. Given the history of NEPA litigation, and the significant changes in the Proposed Rule, it is likely that these changes will open new pathways for litigation and require courts to interpret the changes before providing regulatory certainty.Background Leading to the Proposed RulePrior to 2020, the regulations implementing NEPA, 40 C.F.R. §§ 1500-1508, had not been meaningfully updated since 1978. In 2020, CEQ finalized significant changes t