White House Says It Has No Legal Basis to Regulate Permitting

The White House will soon publish an interim final rule that scraps permitting rules that have been on the books for almost 50 years, according to a notice posted to a website Wednesday.

Once the rule is published in the Federal Register, which could happen as soon as Thursday, the clock will start ticking on a regulation that outlines how agencies issue permits for major projects, fulfilling a longstanding Republican goal.

President Donald Trump’s “Unleashing American Energy” executive order directed the Council on Environmental Quality to consider rescinding its permitting rules and also rescinded the 1977 executive order that formed the basis for those rules.

The CEQ notice posted Wednesday said those orders are an “independent and sufficient reason” for the interim final rule.

The office said in its notice that it has “come to have serious concerns about its statutory authority” to maintain its rules under the National Environmental Policy Act. No court has held that Congress gave CEQ the authority to tell other federal agencies what to do, the agency wrote.

CEQ isn’t required to consider the degree to which developers rely on the existing rules when it changes or does away with them, according to the notice. That’s especially true because agencies will still be able to use or amend their own permitting procedures, CEQ said.

“Removing CEQ’s regulations does not constitute a retroactive change in agencies’ practices or an alteration of the public or project sponsors’ engagement under NEPA with respect to those agency actions,” according to the notice.

CEQ also said the interim final rule—which is typically only used in emergencies—is the right mechanism in part because the US District Court for the District of North Dakota ruled earlier this month that the agency doesn’t have legal authority to issue rules.

As a result, CEQ “is concerned that agencies and the public are confused as to the status and legitimacy of its NEPA regulations,” according to the notice.

The more thorough—but also vastly more time-consuming—notice and comment rulemaking process isn’t necessary in this case because the deletion of the 1977 executive order makes the interim final rule a “procedural and ministerial step” to implement Trump’s directive.

CEQ also said its NEPA rules are procedural only, which generally don’t require notice and comment.

The interim final rule will take effect 45 days after it’s published in the Federal Register. In the interim, the public can submit comments to CEQ.

“This move won’t improve decision-making or make the government more effective,” Abigail Dillen, president of Earthjustice, said in a statement.

“Tossing out the rules that have been in place for 50 years is a recipe for chaos and gridlock,” Dillen said. “As intended, eliminating all the NEPA rules will ‘unleash’ oil and gas development under the guise of a fake energy emergency.”