Bloomberg Law
Oct. 6, 2021, 11:05 AMUpdated: Oct. 6, 2021, 4:24 PM

Biden to Unwind Environmental Permit Tweaks Builders Praised (4)

Stephen Lee
Stephen Lee

The White House on Wednesday started to unwind the Trump administration’s changes to the nation’s environmental permitting rules.

The new rulemaking is the first of two sets of changes that, taken together, would restore the National Environmental Policy Act to its pre-2020 state, and in some cases go further. Environmentalists and Democratic lawmakers have been clamoring for the Council on Environmental Quality to undo the Trump-era changes since President Joe Biden took office.

Industry groups have broadly preferred the Trump-era changes because they push agencies to make permitting decisions faster, and in many cases make it easier to obtain permits. NEPA affects a wide range of projects, including oil and gas pipelines, mines on federal land, roads and bridges, building construction, solar arrays, and offshore wind farms.

The groups have also expressed concern that undoing the 2020 revisions could create significant uncertainty for NEPA reviews and, in some cases, demand that agencies redo some assessments. They are expected to lobby for the Trump-era language to be maintained.

“This is terrible policy,” Neil Chilson, a senior research fellow for technology and innovation at the libertarian-oriented Charles Koch Institute, said in a tweet. “I spent years navigating NEPA in private practice and it’s 75% useless paperwork and process and 25% a tool for NIMBYs to stop progress—including services (such as broadband) to the most disadvantaged.”

Chad Whiteman, vice president for environment and regulatory affairs at the U.S. Chamber’s Global Energy Institute, said the proposed rule “will only serve to slow down building the infrastructure of the future.”

“Important projects that address critical issues like improving access to public transit, adding more clean energy to the grid and expanding broadband access are languishing due to continued delays and that must change,” Whiteman said in a statement.

Cumulative Effects

CEQ, under Biden, wants to reestablish instructions to federal agencies to consider the indirect and cumulative effects of permitting decisions, not just the direct effects. That edict is likely to mean climate change will factor more heavily into decisions on whether and how large infrastructure projects should be built.

Environmental justice communities also stand to benefit, since many of them suffer from the compounded impacts of multiple sources of pollution and emissions.

Under Trump, CEQ changed the rules so regulators weren’t required to assess the cumulative impacts of potential decisions. Instead, they were told to focus their scrutiny on reasonably foreseeable impacts with a close causal relationship to the proposed action.

But the rulemaking process takes months, if not years, so the changes won’t kick in immediately. Opponents also will be able to challenge the rules in court, if they’re finalized.

Floor, Not a Ceiling

The new rulemaking also seeks to restore agencies’ authority to develop other ways of building projects, in conjunction with communities and project backers.

Under the Trump rule, agencies were limited in their ability to draft and consider alternative designs that didn’t match up with the project sponsor’s stated goal. That often means plans that are in the public interest must be ruled out, according to environmentalists.

The rulemaking further establishes the NEPA rules as a floor that federal agencies must meet, rather than a ceiling. That change would give agencies the power to lay out their own implementing procedures that go beyond the standards laid out in the NEPA rules.

CEQ is now taking public comments on the proposal and has scheduled online meetings on Oct. 19 and Oct. 21.

The agency has said it also wants to publish a second rulemaking next year that will reach even further. That rule could take dead aim at Trump-era provisions such as language that limits the scope of agency permit reviews for large projects, including highways and bridges.

‘Sowed Confusion’

The Trump rule “caused implementation challenges for agencies and sowed confusion among stakeholders and the general public,” CEQ said in a statement.

The new rulemaking will restore regulatory certainty, reduce conflict, and put more Americans to work on infrastructure projects, the agency said.

“Patching these holes in the environmental review process will help reduce conflict and litigation and help clear up some of the uncertainty that the previous administration’s rule caused,” CEQ Chair Brenda Mallory said in the statement.

But the Biden administration doesn’t object to all the 2020 changes. For example, one of the tweaks gives tribes a more prominent voice in permitting decisions, which some White House officials have publicly supported.

‘Important First Step’

Environmental groups were quick to applaud the administration’s move.

The rulemaking is “an important first step to reestablish NEPA safeguards and ensure the federal government considers the climate and environmental justice impacts of industrial projects,” Rosalie Winn, senior attorney at the Environmental Defense Fund, said in a statement.

The new rule also prioritizes the input of frontline and historically marginalized communities, according to Mustafa Santiago Ali, vice president of environmental justice, climate, and community revitalization for the National Wildlife Federation.

Sen. Ed Markey (D-Mass.), chair of the Senate Environment and Public Works Subcommittee on Clean Air, Climate, and Nuclear Safety, said the action will lead to “better federal decisions, better outcomes for communities, and better results for public health.”

But Randi Spivak, director of the Center for Biological Diversity’s public lands program, cautioned that “we have a long way to go and not much time” to address environmental injustice, climate change, and the extinction crisis.

(Adds reaction from U.S. Chamber of Commerce in sixth and seventh paragraphs.)

To contact the reporter on this story: Stephen Lee in Washington at

To contact the editors responsible for this story: Chuck McCutcheon at; Rebecca Baker at