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Biden Environment Permit Rewrite Undoes Some of Trump Plan (1)

April 19, 2022, 1:00 PMUpdated: April 19, 2022, 4:01 PM

Federal agencies will have to consider the climate change impact of infrastructure projects, land management efforts, and many other activities under a final rule the White House issued Tuesday.

The rule precedes a second, more significant set of changes to the National Environmental Permitting Act rules coming later in the year. Tuesday’s rule undoes some—but not all—of the changes to the nation’s environmental permitting regime that the Trump administration had imposed. They apply to a wide range of infrastructure works, including oil and gas pipelines, federal mining projects, roads, bridges, and renewable energy projects.

The tug-of-war over NEPA regulations nudges the rules slightly back in Democrats’ and environmentalists’ favor. They also highlight a tension the Biden administration must navigate: On one hand, the White House wants to restore tough environmental protections, but it also doesn’t want to inhibit permitting so much that important projects get held up for years or investors grow frustrated and walk away.

Under the Council on Environmental Quality’s new rule, agencies must consider the direct, indirect, and cumulative impacts of a proposed action. That includes a project’s climate change impact, as well as the consequences of additional pollution in communities that are already overburdened.

In 2020, the Trump-led CEQ changed the rules so regulators weren’t required to assess the cumulative effects of their decisions. Instead, they were told to focus on reasonably foreseeable effects with a close causal relationship to the proposed action.

The rule will go into effect 30 days after it’s published in the Federal Register, which is slated for April 20.

Purpose and Need

The rule also gives agencies the authority to assess the purpose and need of a project and work with communities to develop alternative plans. Under the Trump rule, agencies were limited in their ability to draft and consider alternative designs that didn’t match up with the project sponsor’s stated goal. Environmentalists argued that has often meant plans that are in the public interest must be ruled out.

The new rule also establishes CEQ’s rules as a floor, rather than a ceiling. That change gives agencies the power to lay out their own implementing procedures that go beyond the standards laid out in the NEPA rules.

Unwinding the Trump rules has been a top priority of the Biden administration, whose supporters want agencies to think carefully about the impact of infrastructure projects before they start building.

“Restoring these basic community safeguards will provide regulatory certainty, reduce conflict, and help ensure that projects get built right the first time,” CEQ Chair Brenda Mallory said in a statement.

“Patching these holes in the environmental review process will help projects get built faster, be more resilient, and provide greater benefits to people who live nearby,” Mallory said.

Pushback From Industry

Industry groups and their allies in Congress have argued that the federal permitting process can drag on for years, blocking needed projects from getting built—including ones that can reduce carbon emissions, such as wind farms and solar arrays.

“America’s natural gas utilities want a federal permitting process that appropriately balances environmental protection and preservation with building much needed critical infrastructure in a timely and cost-efficient manner,” Karen Harbert, president of the American Gas Association, said April 8.

She also said the Trump-era changes of 2020 promoted “predictability and transparency in the permitting procedure by clearly identifying which federal agencies need to review proposals, improving coordination between federal agencies and reducing unnecessary delays in the review process.”

But Stephen Schima, senior legislative counsel at Earthjustice, dismissed those notions. He pointed to “frontline communities” experiencing the first and worst consequences of climate change.

“The only thing predictable about the Trump regulations were that they would have sidelined and silenced front-line communities while constructing taxpayer-funded critical infrastructure without any regard for rising seas, increased drought, and more severe weather as a result of climate change,” Schima said earlier this month.

He also argued that the 2020 rewrite upended decades of case law and would have sparked “endless litigation” to sort out their intent and impacts.

Rep. Raul Grijalva (D-Ariz.), chairman of the House Natural Resources Committee, applauded the rule as an important step to combat climate change and bring communities to the table in permitting decisions. But he also said that, with funding from the bipartisan infrastructure package flowing out of agencies now, the administration must complete the second phase of rulemaking quickly.

“Without a strengthened NEPA and public engagement process, these investments could very well fall short of their full potential to advance equity and environmental justice for all communities,” Grijalva said.

Rep. Bruce Westerman (R-Ark.), the committee’s top Republican, assailed the rule as the wrong policy at the wrong time.

“At a time when we should be coalescing around bipartisan ways to lower gas prices, tame skyrocketing inflation and fix the supply chain crisis, President Biden is unfortunately reinstating archaic NEPA regulations that will only result in delays and red tape and feed activist litigation,” Westerman said. “It’s clear their only goal is to delay and obfuscate critical infrastructure projects even further.”

—With assistance from Jennifer A. Dlouhy (Bloomberg News)

(Updates with additional reporting throughout.)

To contact the reporter on this story: Stephen Lee in Washington at stephenlee@bloombergindustry.com

To contact the editor responsible for this story: Chuck McCutcheon at cmccutcheon@bloombergindustry.com

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