Bloomberg Law
Oct. 8, 2021, 10:00 AM

Round Two of Environment Permit Change to Ask: Revert or Refine?

Stephen Lee
Stephen Lee

The process of recasting the nation’s environmental permitting rules is going to be a two-step approach, and phase two is likely to drill even deeper into the changes put in place by the Trump administration, former government officials predict.

The first step, announced on Wednesday, tells agencies to consider the indirect and cumulative effects of permitting decisions and restores their power to develop other ways of constructing projects. The Biden administration has been under pressure to redo the National Environmental Policy Act rules, which affect oil and gas pipelines, federal mining projects, roads, bridges, renewable energy projects, and other types of infrastructure.

The Council on Environmental Quality has promised an additional rulemaking in 2022 that would further change the regime put in place in 2020. Phase two is likely to incorporate “the progression of ideas” that have been made over the years, over several administrations and with bipartisan support, to make NEPA rules work more efficiently, said Cheryl Wasserman, a former EPA associate director for policy analysis.

She pointed to developments that have sharpened schedules for decision making tailored to specific projects. Many of those concepts—such as developing schedules with project proponents and multiple government agencies—are good ideas but weren’t specifically laid out in the original 1978 regulations, according to Wasserman.

“I think everyone that appreciates the thoughtfulness and perspective that NEPA brings to bear is always looking for opportunities also to do that more efficiently,” said Wasserman, now head of the NEPA and infrastructure team at the Environmental Protection Network, a nonpartisan organization of more than 550 former EPA officials.

Durable Waters Definition

A third-way approach would mirror the Environmental Protection Agency’s plan to create a durable definition of federal waters, which have swayed back and forth between the Obama and Trump administrations.

Agency leaders have signaled they won’t simply turn the clock back to the Obama-era definition, but will instead chart a new path forward.

The relatively small steps taken in the Wednesday rulemaking suggest that the Biden administration “is not necessarily opposed to procedural reforms, refinements, and streamlining,” said Ethan Shenkman, the EPA’s deputy general counsel during the Obama administration.

“To me, it signals that, on this whole basket of procedural reforms, they’re open to continuing to work on those and take more time, and maybe keep some or refine some or improve on them—not simply going back to the way it was before,” said Shenkman, now a partner at Arnold & Porter Kaye Scholer LLP.

‘Could Be Misconstrued’

If CEQ simply reverted back to the original 1978 NEPA rules, “politically, that could be misconstrued as an unwillingness to look at reform, even though those original NEPA rules were brilliant and anticipated much of what is needed to efficiently implement NEPA without losing its many benefits,” Wasserman said.

Sen. Shelley Moore Capito (R-W.Va.), ranking member on the Senate Environment and Public Works Committee, seemed to hint at the possibility of NEPA reform becoming politicized.

She called the new rulemaking a set of “unnecessary revisions meant to appease environmental groups who hate anything the Trump administration’s CEQ implemented,” according to a statement.

The Biden administration could seek political cover by calling attention to 2020 changes it accepts, such as giving tribes a more prominent voice in permitting decisions.

Infrastructure Bill

In the meantime, CEQ’s work could be undermined by provisions in the bipartisan infrastructure bill being negotiated in Congress.

One amendment in that bill would permanently reauthorize part of the 2015 Fixing America’s Surface Transportation Act, which speeds up permitting for a broad range of projects, including mines, energy generation, and physical infrastructure.

Another set of changes would allow federal agencies to bypass NEPA reviews for activities such as applying pesticides and cutting timber on parcels of land up to 3,000 acres.

The bill also would codify an executive order President Donald Trump enacted in 2017, which sought to streamline environmental reviews by consolidating the decision making process across agencies and putting new deadlines in place. Biden rescinded the order early in his administration.

“Any time Congress legislates a categorical exclusion and bypasses public input and environmental review, it’s a problem, because they’re bypassing the legal process itself,” said Stephen Schima, senior legislative counsel with Earthjustice.

Alex Herrgott, who led the Federal Permitting Improvement Steering Council during the Trump years, surmised that CEQ left a second rulemaking dangling to react to the outcome of the bipartisan infrastructure package and its NEPA provisions.

VIDEO: We look at five reasons why it’s so difficult to build major infrastructure projects in America.

Economic Growth

The new rulemaking could risk the solar arrays, wind farms, and transmission lines that must be built to reach Biden’s plan to create a carbon-free power sector by 2035, said Herrgott, now president of The Permitting Institute, a pro-development association.

The proposed rule also imperils roads, highways, bridges, sewer lines, and drinking water systems, at precisely the wrong time for an economy that’s trying to recover from the coronavirus pandemic, according to Diane Katz, senior research fellow in regulatory policy at the Heritage Foundation.

“You delay these things and it means the project can’t be built and the people who put the shovels in the ground can’t get good-paying jobs,” said Chad Whiteman, vice president for environment and regulatory affairs at the U.S. Chamber of Commerce’s Global Energy Institute.

But environmentalists say there’s no evidence that NEPA reviews appreciably slow down permit decisions. Thorough reviews are not only firmly in the public interest, they said, but also are mandated under the statute and case law.

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