President Joe Biden’s White House Council on Environmental Quality (CEQ) announced that it is rescinding reforms made to the 1970 National Environmental Policy Act (NEPA) under former President Donald Trump.
The Trump-era NEPA reforms were intended to clarify what environmental impacts infrastructure development projects, for instance, road, bridge, tunnel, and energy transmission construction and repair, had to account for in their environmental impact assessments. The goal of the reform was reduce the amount of delays to critical infrastructure projects due to litigation, thus expediting construction and repairs.
Rewrite Could Complicate Construction
The CEQ’s move comes as the Democrat-controlled Congress is attempting to pass a Biden-endorsed a $1.2 trillion infrastructure bill.
Even if it is eventually enacted, the infrastructure bill’s ability to deliver on transportation improvements and other infrastructure development will depend in large part on how the CEQ’s reinstatement of pre-Trump NEPA policies affect the timely completion of construction projects.
Frustrated by the often extended amount of time it took to get infrastructure projects from the drawing board to completion, Trump officials in 2020 finalized changes to the NEPA process that, among other things, set strict deadlines environmental reviews to take place and public comments to be filed and allowed federal officials to disregard a project’s indirect or cumulative impacts on climate change.
The Trump changes were bitterly fought by environmental groups who, over the decades, skillfully used the 1970 NEPA law to tie up projects they opposed in protracted litigation.
‘Whole-of-Government Approach’
The CEQ says the NEPA reversal and rewrite are part of a cross agency approach the Biden administration is taking to address climate change.
“As part of the Biden Administration’s whole-of-government approach, to tackling the climate crisis and confronting environmental injustice, CEQ is proposing to restore three procedural provisions of the National Environmental Policy Act (NEPA) regulations to provide communities and decision makers with more complete information about proposed projects, their environmental and public health impacts, and their alternatives,” the CEQ said in a statement. “[The proposed rule would] restore the requirement that federal agencies evaluate all the relevant environmental impacts of the decisions they are making.
“This proposal would make clear that agencies must consider the ‘direct,’ ‘indirect,’ and ‘cumulative’ impacts of a proposed decision, including by evaluating a full range of climate impacts and assessing the consequences of releasing additional pollution in communities that are already overburdened by polluted air or dirty water,” said CEQ. “[It] Establish[es] CEQ’s NEPA regulations as a floor rather than a ceiling for the regulatory review standards that federal agencies should be meeting.”
A First Step
CEQ stressed that these revisions are merely “Phase 1” of its review.
Over the next several months, the CEQ says the White House will develop “Phase 2” changes to NEPA regulations “to help ensure full and fair involvement in the environmental review process; meet the nation’s environmental, climate change, and environmental justice requirements; provide regulatory certainty to stakeholders; and promote better decision-making consistent with NEPA’s goals and requirements.”
Impacts Local Improvements
By requiring agencies to consider the “direct,” “indirect,” and “cumulative” impacts of a proposed project, including “a full range of climate impacts,” the Biden White House is granting federal officials substantial leeway in determining the many proposed state and local that may require federal permits or need federal funding, says former North Dakota state Representative Bette Grande, CEO of the Roughrider Policy Center and a state government affairs manager at The Heartland Institute, which publishes Environment & Climate News. Projects that don’t meet these vaguely defined terms will likely stand little chance of approval.
“Our nation is struggling with supply-chain and inflation concerns and rolling back the Trump administration’s NEPA reform will cost consumers dearly,” said Grande “The ‘whole-of-government’ approach to fighting the climate change boogeyman, including additional NEPA regulations, is throwing sand in the gears of an already struggling economy.
“Rising gasoline prices led the Biden administration in August to ask OPEC+ to increase oil production, and in October Biden asked domestic oil producers for help,” said Grande. “And now they want to undo Trump NEPA reforms, a move that will impact energy production and increase prices; makes you wonder if the Biden administration’s left hand knows what its right hand is doing.”
Possible Double Edged-Sword
Environmental groups have hailed the administration’s move, but a more stringent NEPA could come back to haunt their and the Biden White House’s green agenda, says David Stevenson, director of the Center for Energy & the Environment at the Delaware-based Caesar Rodney Institute.
“Be Careful what you wish for,” said Stevenson. “The Caesar Rodney Institute has founded the American Coalition for Ocean Protection, composed of beach communities and free-market institutes, and the Ocean Environment Legal Defense Fund.
“The Biden administration’s NEPA reforms could contribute to efforts by our organizations and others concerned about federal coastal development, to the find violations of NEPA and other laws like the 1973 Endangered Species Act or the 1972 Clean Water Act to fight federal approval of offshore wind projects,” Stevenson said. “The NEPA sword could easily cut both ways.”
Bonner R. Cohen, Ph.D., (bcohen@nationalcenter.org) is a senior fellow at the National Center for Public Policy Research and a senior policy analyst with the Committee for a Constructive Tomorrow.