White House Moves to Soften Project Permitting Rules at Agencies

The Trump administration is moving to reshape the way individual agencies handle environmental permitting, according to a White House document reviewed by Bloomberg Law.

The guidance, dated April 8, matters because the White House recently scrapped a set of rules that tightly prescribe how agencies should make permitting decisions, telling them which factors they have to consider, how to write documents, and a wide range of other procedural requirements.

But many federal agencies have, over time, formally adopted those now-defunct rules into their own procedures, meaning the demise of the Council of Environmental Quality’s (CEQ) regulations wouldn’t have much real-world effect.

One change in CEQ’s new 25-page memo is a higher bar for the kinds of projects to which the permitting rules apply. The old regulation had a relatively loose definition of what constitutes a “major federal action” that swept a wide range of projects into its ambit, subjecting them all to reviews under the National Environmental Policy Act (NEPA).

The new guidance advises agencies to exempt certain kinds of projects, in one place suggesting they "[i]nsert a list of examples from agency experience that the agency knows will usually or always trigger an EIS,” referring to an exhaustive type of review known as an environmental impact statement.

“Many agencies already have such a list in their existing NEPA procedures,” the document reads. It also advises agencies to “consider distilling from that list a presumptive (but nonbinding) monetary threshold above which an action will be deemed ‘major.’”

Taken as a whole, those changes “give agencies a road map to exempt as many of the actions that they take from NEPA altogether that they possibly can,” said Jan Hasselman, a senior attorney at Earthjustice who has also seen the memo.

CEQ could not be immediately reached for comment.

The memo also changes the way the old rules contemplated climate change. The Biden administration inserted language that explicitly included climate change as an effect agencies should take into account.

That language doesn’t appear in this guidance. The document does, however, recommend that agencies consider “reasonably foreseeable environmental effects” of the proposed action.

Hasselman further said the guidance “takes the public out of the process, which is really the whole point of NEPA. There’s no duty to even publish a draft EIS and take comment.”

The memo does call for public comment at the scoping stage, but “at that point, no one really knows what the impacts are, or even what the project is,” Hasselman said.

CEQ writes in the document that the template is non-binding and doesn’t establish new requirements, create legal obligations, or represent the agency’s final position on how NEPA should be handled.

Another part of the document states that “agencies should not interpret any portion of this document as mandatory or prescriptive.”

To Hasselman, that language belies the reality that federal agencies report to the White House and are strongly inclined to follow the president’s lead.

To adopt the new guidance, agencies will likely delete their existing rules through notice and comment rulemaking. That could invite a legal challenge, but agencies operated under permitting guidance for at least eight years before the CEQ finalized its rules.

The White House on Tuesday released an executive order calling on agencies to update the technology they use in permitting, part of a sweeping effort to make the process move faster.