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Biden Infrastructure Plan Has Unlikely Ally in Trump Permit Redo

April 2, 2021, 9:31 AM

A set of Trump-era changes to the nation’s permitting laws—which Democrats fiercely rejected—could end up helping President Joe Biden get his $2.25 trillion infrastructure plan off the ground if they’re not tossed out, law professors and free marketeers say.

The 2020 White House Council on Environmental Quality rewrite limits the scope of agency permit reviews under the National Environmental Policy Act for large projects, such as highways and bridges. It also more narrowly defines which projects warrant scrutiny.

It’s a paradox that Chad Whiteman, vice president of environmental and regulatory affairs at the U.S. Chamber of Commerce, finds “quite ironic.”

“The Biden administration talks about shovel-ready projects and getting these things in the ground,” Whiteman said. “But if they’re going to roll back the Trump improvements to the permitting process, they’re going to be slowing themselves down.”

Biden’s blueprint envisions huge new projects, including $115 billion to fix roads and bridges, $50 billion for disaster-resilient infrastructure, $25 billion for airport upgrades, and $111 billion to repair and replace drinking water, stormwater, and wastewater systems, along with lead pipes.

The Biden team has given few signs about its plans for the permitting rules, apart from saying that it’s reviewing the Trump changes.

‘Hard Choices’

Mario Loyola, who served as CEQ’s associate director for regulatory reform during the Trump era, said the Trump changes will get permits through the pipeline faster.

A more predictable permitting system would free up “a limitless amount of private capital” that would pay for many of the new infrastructure projects, because it would give private investors more certainty about when they can expect a return, said Loyola, now a senior fellow at the Competitive Enterprise Institute.

Projects that environmentalists favor, such as ecological restoration projects in places like Louisiana and Florida, would also be fast-tracked if the Trump-era rules remain in place, Loyola said.

Renewable energy projects fall into that bucket, too, according to Whiteman. Biden’s plan to generate 30 gigawatts of offshore wind energy by 2030 would require about 10,000 wind turbines, plus transmission lines—all of which will have to be permitted, he said.

The conflict demonstrates the realities of governing the Biden administration is facing, said James Coleman, a law professor at Southern Methodist University.

“When you’re out of power, the deal is to be all things to all people,” Coleman said. “And when you’re in power, you have to make hard choices.”

The Biden plan “is in some tension with the new administration’s stated objective of dismantling the last administration’s infrastructure reforms,” said Jeffrey Wood, who led the Justice Department’s environment division for the first two years of the Trump administration.

Ultimately, some aspects of the Trump changes “are likely to endure on this basis,” predicted Wood, now a partner at Baker Botts LLP. “Otherwise, without those improvements, a plan to expand U.S. energy infrastructure to meet new goals may remain just that: a plan.”

With less than a four-year time frame, the Biden team is under pressure to start delivering projects quickly in order to boost his chances of reelection. But the permitting process can be lengthy. Estimates vary, but Trump-era CEQ Chairman Mary Neumayr estimated that securing an environmental permit takers about 4 1/2 years.

Picking Up the Pace

But federal agencies don’t need the Trump changes to get permitting reviews over the finish line, said Andrew Rosenberg, former deputy director at the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service during the Clinton administration. In his view, they can pick up the pace if they simply put their minds to it.

For example, he said, agencies can repurpose each other’s environmental assessments that have already been done, instead of doing their own from scratch.

“You don’t have to redo it every time,” said Rosenberg, who now directs the Union of Concerned Scientists’ Center for Science and Democracy. “You might have to add any new information that’s come up. But no. Every agency says, ‘No, we’re going to start over for every project.’”

Numerous permitting delays also are caused by companies and agencies that drag their feet, Rosenberg said. He recalled one case, during his days at the fisheries service, involving an aquaculture facility off the coast of Massachusetts.

“The complaint was, ‘This is taking years,’” he recalled. “If you’d answered the questions, we could have started four years ago, five years ago. The reason was because the person didn’t want to answer the questions or didn’t know the answers.”

The permitting process shouldn’t be blamed for delaying infrastructure projects, added Stephen Schima, senior legislative counsel with Earthjustice. A lack of funding is the root cause of most delays—and the Biden plan addresses that need, he said.

“We need meaningful implementation of NEPA that looks at the impacts of climate change on infrastructure and considers the voices of those communities most impacted by these projects,” Schima said.

Moreover, many of the Biden administration’s plans would upgrade existing infrastructure, which generally requires a simpler NEPA analysis than new projects, said Michelle Diffenderfer, an attorney with Lewis, Longman & Walker, P.A.

Climate Change Impacts

One of the Trump-era NEPA changes that could go on the chopping block is a waiver allowing agencies to bypass considering the indirect and cumulative impacts of a project—a phrase that typically refers to climate change.

That idea is a virtual non-starter for the Biden administration, because it clashes with the president’s goal to take swift climate action, according to Kym Hunter, a senior attorney at the Southern Environmental Law Center.

CEQ has launched a comprehensive review of the Trump rule “to evaluate its legal basis, policy orientation, and conformance with administration priorities, including the administration’s commitment to addressing climate change and environmental justice,” Matt Lee-Ashley, the agency’s interim chief of staff, told a district court in a March 17 legal filing.

Among the items under review is whether the Trump changes “may adversely affect climate change, climate resilience, or environmental quality generally,” Lee-Ashley wrote.

The rewrite doesn’t explicitly bar agencies from considering cumulative effects if they choose to do so, and the NEPA statute makes those reviews mandatory, according to Hunter.

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

To contact the editors responsible for this story: Chuck McCutcheon at cmccutcheon@bloombergindustry.com; Rebecca Baker at rbaker@bloombergindustry.com

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