A rule proposed this summer by the White House Council on Environmental Quality (CEQ) meant to roll back Trump-era reforms to the National Environmental Policy Act (NEPA) is headed for its day in court after attorneys general in 24 states blasted the proposal in public comments.
Signed into law by President Richard Nixon on Jan. 1, 1970, NEPA created a set of environmental assessments federal agencies are to complete before approving projects — such as the construction of roads and bridges or the extraction of energy or minerals — that fall under their jurisdiction. Projects that do not receive an agency’s NEPA approval do not get off the ground.
Since the statute’s enactment, NEPA’s procedures have become so time-consuming that they have tied up infrastructure and other projects for years. NEPA’s red tape has often discouraged developers from going ahead with a project, knowing it will take an eternity to get a coveted Environmental Impact Statement (EIS) that allows ground to be broken. Opponents of such projects have become adept at filing lawsuits claiming that a proposed project violated NEPA in some way, further slowing down the snail’s tempo of the NEPA approval process.
The Trump administration overhauled NEPA by issuing a rule that, among other things, shortened the length of documents the agencies are to prepare and setting strict timelines within which assessments are to be completed. Not surprisingly, the Biden administration reversed the Trump changes with its own proposed rule that reinstates many onerous procedures and adds vaguely worded climate considerations aimed to thwart projects not to its liking.
“Major Questions” Doctrine
Led by Iowa Attorney General Brenna Bird, AGs from 24 red states are charging the Biden CEQ with trying to transform NEPA from a procedural statute to one specifically designed to move the country away from fossil fuels. They note that the Biden NEPA rule bears a striking resemblance to an Obama-era attempt to have the Environmental Protection Agency (EPA) impose such strict emissions regulations on coal-fired power plants that utilities had little choice but to shutter the facilities in favor of wind and solar power.
But in its landmark June 2022 decision in West Virginia v. EPA, the U.S. Supreme Court found that EPA lacked the statutory authority to issue such a sweeping rule. The high court held that EPA’s action violated the “major questions” doctrine, under which federal agencies cannot issue economically or politically significant regulations unless specifically empowered by Congress to do so. In other words, federal executive agencies cannot make up power out of whole cloth and must adhere to the constitutionally mandated “Separation of Powers.”
The “major questions” doctrine is cited by the 24 AGs in arguing that the Biden NEPA proposal constitutes an overreach of congressional authority. They point to language in the proposal that would allow agencies to consider alternative project designs that lie outside that agency’s jurisdiction. “That rule could, for example, allow federal regulators considering a natural gas pipeline to instead consider an alternative project like a solar or wind generation project,” Climate Wire reported (Oct. 5). “That authority ‘vastly expands the potential impact NEPA may have on agency decisions’ the attorneys general said.”
Not Bluffing
By citing the “major questions” doctrine, the AGs’ comments are a not-so-veiled threat to take the Biden administration to court unless the language in the proposed NEPA rule is not altered significantly. The NEPA rule, which would have a far-reaching nationwide economic impact, undoubtedly involves a “major question.” Attorney General Bird and her colleagues are not bluffing; they know that the Supreme Court will not let the CEQ rule stand as written.
Bonner R. Cohen, Ph.D., is a senior fellow with the National Center for Public Policy Research.
This article was originally published by CFACT, and is reposted with permission.
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