Key Takeaways
After decades of calls for reforms of the National Environmental Policy Act (NEPA) from builders, governments, industries and Members of Congress, the Biden Administration has streamlined the permit process, but only for the projects that President Biden supports.
The NEPA changes limit environmental reviews to 2 years and allow for the classification of certain preferred projects to be categorically excluded from having to undergo environmental review.
That means investors in “green energy” including wind, solar, and battery projects, will undergo a much easier process in obtaining needed permits than fossil fuel projects will have.
Senator Manchin, who negotiated the deal with the Biden Administration last year, is livid about the selective application of the changes, accusing the Biden administration of disregarding the agreement and “corrupting it with their own radical agenda.”
The White House Council on Environmental Quality (CEQ) finalized a rule changing the National Environmental Policy Act (NEPA) to streamline permitting for infrastructure for renewable energy and transmission projects. NEPA, a 1969 law that requires environmental reviews for major projects, is a frequent focus of litigation that can delay construction for years. According to Biden’s CEQ, the Bipartisan Permitting Reform Implementation Rule will facilitate agencies moving faster on permits for infrastructure that can help the environment, thus ruling out fossil fuel projects which supply about 80 percent of the nation’s total energy. The rule sets deadlines and page limits for environmental reviews and establishes one lead agency to handle such reviews.
As part of the rule’s review process, climate impacts have to be considered as well as environmental justice — the movement to assist disadvantaged areas — and outreach to those places must be conducted. Biden’s regulation also reverses parts of the 2020 NEPA rule changes, implemented by the Trump administration, that opponents argued made it more difficult for communities to engage in the environmental review process and “attempted to curtail judicial review” of permitting decisions.
Past attempts to provide streamlining of NEPA have been met with outrage and hyperbole from environmental groups, including groups accusing legislative initiatives of “gutting” NEPA and “dismantling” the Act. Apparently because the CEQ changes support the politically correct renewable energy for which these groups advocate, as well as the new transmission these sources require, the groups have not waged their normal campaigns against the reforms.
According to the CEQ, the new rule “fully implements” new permitting efficiencies the administration and Congress agreed to last summer when Congress passed the Fiscal Responsibility Act to raise the federal debt ceiling, including “setting clear deadlines for agencies to complete environmental reviews, requiring a lead agency and setting specific expectations for lead and cooperating agencies, and creating a unified and coordinated federal review process.”
According to some members of Congress, however, the final rule reneges on the debt ceiling deal, and they believe that it will extend—not reduce—the time it takes to get traditional energy infrastructure projects, like oil and gas pipelines, built. Senator Joe Manchin (D-WV), chairman of the Senate Energy and Natural Resources Committee, in particular, said the White House “disregarded” the deal, “corrupting it with their own radical agenda.” He vowed to lead a Congressional Review Act resolution of disapproval “to get back to the deal that they cut with Congress and signed into law.” According to Republican state attorneys general, it constitutes “a dramatic example of federal and administrative overreach.”
Environmental Reviews
The new rule directs agencies to complete an Environmental Impact Statement (EIS) within 2 years and a less-extensive environmental assessment within 1 year, and allows a lead agency to extend the deadline if it does so in writing. According to CEQ data, it takes an average of 3.5 years for the federal government to complete an EIS, with a quarter of the projects reviewed taking 6 years or more. CEQ’s new rule caps the length of an EIS at 150 pages for straightforward projects and 300 pages, not including appendices, for complex projects. Currently, the median length of an EIS runs 447 pages, with a quarter of the projects exceeding about 750 pages or more, not including appendices, which have a median length of 423 pages. Writing an EIS for the government has become a business for some.
The rule creates new methods for the federal government to establish a “categorical exclusion” in the permitting process. A project receiving a categorical exclusion does not need an environmental review, the most time-consuming part of the permitting process, because the government has determined it would have a negligible impact on the environment. The rule allows multiple agencies to issue a joint categorial exclusion. According to CEQ, “low-impact projects” that may qualify for the categorial exclusions could range “from solar storage and electric vehicle charging infrastructure to transmission improvements and broadband deployment.” There was no mention of fossil fuel projects that currently provide about 80 percent of the nation’s energy.
The rule also directs federal agencies to consider environmental justice and the proposed project’s effects on climate change, including by quantifying “reasonably foreseeable greenhouse gas emissions” in their reviews. It also directs agencies to identify reasonable alternatives, “like wind and solar projects,” to mitigate climate impacts. In practice, this means a company proposing a pipeline to transport oil or natural gas could be confronted with the government’s “preferred alternative” being a wind or solar facility. The provision allows the government to favor intermittent and weather-driven renewable energy instead of developing infrastructure such as pipelines that builders are seeking to construct. It is akin to a person requesting a vehicle registration only to have the Department of Motor Vehicles suggest the person walk instead.
Conclusion
The White House reformed the U.S. environmental review process for major projects that would speed up approval for President Biden’s pet projects–anything from power transmission from wind and solar farms to semiconductor manufacturing. But it excluded oil and gas projects. Reforms for Biden’s pet projects entail one- and two-year deadlines for federal agencies, page limits and tasking lead agencies with coordinating the process. It also creates ways for agencies to establish categorical exclusions for projects such as transmission lines in areas where the land has already been disturbed–a provision that can be abused for politically correct projects of the Biden administration.
The rule stems from the debt ceiling deal Biden negotiated with congressional leaders last year. But some lawmakers including Senator Manchin argue that the rule does not adhere closely enough to that deal. Manchin vowed to roll it back through a Congressional Review Act resolution that Biden will surely veto. “At a time when everyone agrees that it takes too long to build infrastructure in this country, the Administration’s new NEPA regulations will take us backwards,” Manchin said in a statement. Manchin and other lawmakers have been working on legislation that reforms NEPA for all energy projects.
