Climate Instructions Seen as Needed Follow to Biden Permit Rule

The Biden administration’s rewrite of the nation’s environmental permitting rules is heightening expectations for follow-up guidance telling agencies how to consider the climate impacts of proposed projects.

The Council on Environmental Quality has said it wants to move ahead with guidance this year, after plans issued during the Obama administration were scuttled under President Donald Trump. The agency’s new rule on the National Environmental Policy Act, issued Tuesday, requires federal agencies to consider the climate change impacts of infrastructure projects, land management efforts, and many other activities.

Clear instructions will provide legal heft to agency decisions on projects, helping seal off lawsuits that claim a permit isn’t valid because the agency didn’t fully consider greenhouse gas emissions, according to Brett Hartl, government affairs director at the Center for Biological Diversity.

A reduction in lawsuits could, in turn, help projects move through permitting more quickly. That would partially undermine industry’s argument that CEQ’s new rule will trigger an onslaught of nuisance litigation that jams up needed infrastructure and clean energy projects for years.

‘It’s a Backstop’

“Clear guidance about when and how to consider greenhouse gas emissions bolsters the ultimate decisions that agencies make, and it’s a backstop,” Hartl said. “It’s not controversial to say there are normal rules of reason about where to stop the analysis. It helps give the agencies clarity about how to proceed.”

Nathan Matthews, a senior attorney at the Sierra Club, added that it “would be very helpful for CEQ to put out some guidance to help agencies decide when it’s worth worrying about climate, and when you can just say, ‘Look, there’s nothing to see here. Don’t spend your time or energy on it.’”

Agencies also can—and have—come up with their own instructions on how to consider greenhouse gases during permitting reviews. But central guidance from CEQ would still establish a consistent baseline and help agencies that haven’t yet developed their own in-house rules, Hartl said.

The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

Judges Already Aware

Whether guidance is issued or not, Thomas Jensen, a former natural resources director at CEQ during the Clinton administration, said he doesn’t foresee a wave of climate-related lawsuits stemming from the new rule. That’s because many courts have already been interpreting NEPA to require a careful consideration of climate impacts.

“Judges typically are smart people who are aware of what’s actually happening in the world,” said Jensen, now a partner at Perkins Coie LLP. “They have had no trouble recognizing that climate change is an integral element of any competent NEPA review.”

Some opponents of the new rule said it’s so fundamentally flawed that CEQ guidance on how to implement it will do little to stave off lawsuits.

“Nearly all development projects, including highways, bridges, airports, port expansions, and transmission lines, will have direct or indirect impacts on greenhouse gas emissions,” said Marlo Lewis, senior fellow at the Competitive Enterprise Institute.

“Any error or omission in quantifying project-related emissions can become a legal pretext for redoing the analysis, adding years to a project,” Lewis said.

He also said the Competitive Enterprise Institute is reviewing the overall rule and considering its options in challenging it in court.

But to Shannon Anderson, staff attorney at the Powder River Basin Resource Council, the legal grounds for challenging the rule would be tricky because it largely restores the NEPA regulations to the state they were in for decades, until Trump changed them.