Industry lawyers are warning that the climate change provisions of the Biden administration’s new environmental permitting rules will throw more proposed projects into the courts—potentially jeopardizing the very projects the White House wants to promote.
Wind farms, solar arrays, and renewable energy transmission lines—all parts of the White House’s bid to cut domestic greenhouse gas emissions in half by 2030—could be affected, according to attorneys.
“I think they’re injecting a whole other level of uncertainty into the permitting and project development process,” said Byron Brown, who worked on Trump administration policy as the EPA’s deputy chief of staff for policy and previously as an aide to Sen. James Inhofe (R-Okla.), and now is a senior counsel at Crowell & Moring LLP.
“You’re going to have individual judges being forced to weigh in and decide what is enough,” Brown said. “What sort of environmental analysis is sufficient? How far down the chain do you need to go to analyze potential climate change impacts?”
CEQ’s new rule under the National Environmental Policy Act tells agencies to consider the climate change impacts of infrastructure projects, land management efforts, and other activities.
The rule, which goes into effect this month, would undo a change the Trump administration had put in place in 2020. That rule required agencies to look only at reasonably foreseeable effects with a close causal relationship to the proposed action—a reversal of the policy that had been in place for decades before Biden reinstated it.
Extending Permitting Process
The Biden administration denies that its changes will lead to permitting delays because they closed loopholes and resolved ambiguities created by the Trump-era changes.
“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,” CEQ Chair Brenda Mallory said in a statement when the rule was finalized.
But Andrew Emrich, former assistant attorney general at the Justice Department’s environment and natural resources division, said that, relative to the post-Trump rule changes, the new changes “almost by definition” extend the permitting process, thereby opening up more opportunities for legal attacks.
“Agencies have gotten good at circumscribing direct impacts, but now they have to consider indirect impacts that could be some distance in the future, and cumulative impacts that could sweep in projects that might not even be federal projects,” said Emrich, now a partner at Holland & Hart LLP.
NEPA only applies to projects that are subject to federal control or responsibility.
Marlo Lewis, senior fellow at the Competitive Enterprise Institute, said the new rules invite the possibility that almost any project could now be challenged on climate-change grounds.
“All environmental impacts assume a cumulative effects analysis, because nobody today lives in the Garden of Eden,” Lewis said.
Once a case reaches a court, the outcomes can be highly unpredictable, according to Brown, who also worked in the EPA’s Office of General Counsel in the George W. Bush and Obama administrations.
“You get different district courts issuing different opinions,” he said. “It’s kind of a mess right now in the courts.”
At least some of the uncertainty could be cleared up when CEQ issues guidance telling agencies how to consider the climate impacts of proposed projects. That guidance is expected in the coming months, according to an agency spokeswoman.
Brett Hartl, government affairs director at the Center for Biological Diversity, dismissed the notion that climate change will trigger an avalanche of litigation, because agencies can devise “reasonable rules of the road” for doing analyses.
“It’s not like everything under the sun will get litigated because of climate,” he said. “Agencies can and should think about where these emissions become significant. You follow the science about where the impacts are measurable, significant, and have actual consequences.”
Hartl said industry attorneys’ concern that the policy will jeopardize energy projects “is a talking point, a boogeyman.”
Both CEQ and the courts have repeatedly said that climate change “falls squarely within NEPA’s purview,” Stephen Schima, senior legislative counsel at Earthjustice, said.
The CEQ spokeswoman also said the new rule “clarified and reaffirmed” the agency’s longstanding policy—predating the Trump changes—that required agencies to analyze reasonably foreseeable effects, including climate change effects.
But that consideration was already creating legal delays, according to opponents of the Biden changes. The Trump administration tried to limit court challenges in 2020 when it required only that a project’s effects must be “reasonably foreseeable” and have a “reasonably close causal relationship” to the project.
More help could come from the reestablishment of the Trump-era “one federal decision” policy in the recently passed bipartisan infrastructure bill. The policy, which President Joe Biden had earlier revoked, requires agencies to collaborate on permits, do their reviews concurrently, and hold to fixed deadlines.