Released May 03, 2024 | SUGAR LAND
en
Written by John Egan for Industrial Info Resources (Sugar Land, Texas)--Most energy observers would agree that the federal environmental review process is broken, but there are sharp partisan differences about the cure. The Biden administration weighed in with its remedy April 30, a 136-page final rule to "reform, simplify and modernize the federal environmental review process" under the National Environmental Policy Act (NEPA), a bedrock federal environmental rule that was signed into law over five decades ago. Unless stayed by a federal judge, the Biden administration's modifications to NEPA are scheduled to become effective July 1.
The final rule, if it withstands all-but-certain court challenges, will affect federal agencies' environmental assessment of oil and gas pipelines, oil and gas drilling on federal lands and waters, clean energy projects such as renewable electricity generation, transmission projects tied to those clean energy projects, highways and other infrastructure projects that require a federal permit.
The NEPA update prioritized projects with strong environmental benefits but added extra steps for reviewing projects that could damage the climate or the communities near a project.
On April 30, the White House Council on Environmental Quality (CEQ) (Washington, D.C.) issued its final rule modifying NEPA. This was the second phase of the administration's effort to streamline and update that broad and far-reaching environmental law. For more on the administration's first steps to update NEPA, see April 22, 2022, article - CEQ Does a Two-Step on NEPA Changes, Issues Final Phase I Rule.
Paving the way for this Phase II final rule was the law Congress passed in 2023 to increase the federal debt ceiling. That bill passed Congress with broad bipartisan support. That bill included a section detailing further changes the administration wanted to make to NEPA. Much of the final rule consisted of providing federal agencies detailed guidance to implementing the changes the administration wants to make to NEPA reviews.
Writing in The National Law Review, lawyers for Pierce Atwood LLP (Portland, Maine) said the Phase II rule was broader in scope than the CEQ's Phase I rule in 2022. Phase II seeks to "modernize" the 54-year-old law, they wrote.
The Phase II rule makes changes in the federal environmental review process that are likely to "accelerate the timeline for approvals of clean energy projects," the lawyers wrote. These changes in the new rule that likely would speed up federal agency approvals include:
In a statement, CEQ Chair Brenda Mallory said: "President Biden has unleashed historic investments to build our clean energy future, make long-overdue infrastructure upgrades across the nation, and deliver benefits to communities that have been historically left behind. These reforms will deliver smarter decisions, quicker permitting, and projects that are built better and faster."
Added John Podesta, the president's senior advisor for international climate policy, "The Biden-Harris Administration is committed to using every tool at our disposal to accelerate progress on transmission permitting and build a clean energy future. Today's final rule from CEQ fully implements the permitting efficiencies passed by Congress last year and shows the latest way President Biden is accelerating permitting for critical infrastructure."
In the final rule's section on addressing climate change, protecting public health, and encouraging better environmental outcomes, it said federal agencies "should consider the effects of climate change in environmental reviews and encourage identification of reasonable alternatives that will mitigate climate impacts." In addition, the rule helps "promote better environmental outcomes" by:
U.S. Senator Shelley Moore Capito (R-West Virginia), ranking minority member of the Environment and Public Works Committee, blasted the CEQ rule: "The White House continues to say it is in favor of making it easier to build things in America while at the same time imposing more and more regulations that will do the opposite. Unfortunately, the rules finalized today favor only the projects the Biden administration views as compliant with its unrealistic climate agenda. By layering on even more project review requirements, this administration is adding new roadblocks to an already broken permitting process that will hinder job-creating energy, infrastructure, and transportation projects of all kinds."
Senator Joe Manchin (D-West Virginia), chairman of the Senate Energy and Natural Resources Committee, opposed the rule and said he would try to block it. "At a time when everyone agrees that it takes too long to build infrastructure in this country," he said in a statement, "the administration's new NEPA regulations will take us backward. All the White House had to do was implement the common-sense, bipartisan permitting reforms in the (2023 debt ceiling bill), that all sides agreed upon, but once again they've disregarded the deal that was made, the intent of the law that was signed, and are instead corrupting it with their own radical agenda. This will only lead to more costly delays and litigation."
In a statement, the House Natural Resources Committee, chaired by Republican Bruce Westerman (Arkansas), said the new NEPA Rule "deepens (the federal) permitting quagmire." He said the CEQ "is taking an imperfect process and somehow making it worse. The extremists in the White House are more interested in tying up crucial new projects in endless litigation than actually working to solve the problems facing Americans. This new rule will only serve as another win for our adversaries as the Biden administration continues making it virtually impossible to develop our abundant domestic resources. In pursuing Biden's radical environmental agenda, CEQ has managed to ignore statutory changes, making an already convoluted process even more wrapped up in red tape."
Although the rule has an effective date of July 1, a temporary restraining order from a federal judge could make the fate of the NEPA dependent on the outcome of this November's election. Presumptive Republican candidate Donald Trump likely will seek to reverse Biden's changes and reinstitute changes he proposed several years ago. And if Republicans capture the Senate and retain their majority in the House, they could try to block it.
Industrial Info Resources (IIR) is the leading provider of industrial market intelligence. Since 1983, IIR has provided comprehensive research, news and analysis on the industrial process, manufacturing and energy related industries. IIR's Global Market Intelligence (GMI) platform helps companies identify and pursue trends across multiple markets with access to real, qualified and validated plant and project opportunities. Across the world, IIR is tracking over 200,000 current and future projects worth $17.8 Trillion (USD).
The final rule, if it withstands all-but-certain court challenges, will affect federal agencies' environmental assessment of oil and gas pipelines, oil and gas drilling on federal lands and waters, clean energy projects such as renewable electricity generation, transmission projects tied to those clean energy projects, highways and other infrastructure projects that require a federal permit.
The NEPA update prioritized projects with strong environmental benefits but added extra steps for reviewing projects that could damage the climate or the communities near a project.
On April 30, the White House Council on Environmental Quality (CEQ) (Washington, D.C.) issued its final rule modifying NEPA. This was the second phase of the administration's effort to streamline and update that broad and far-reaching environmental law. For more on the administration's first steps to update NEPA, see April 22, 2022, article - CEQ Does a Two-Step on NEPA Changes, Issues Final Phase I Rule.
Paving the way for this Phase II final rule was the law Congress passed in 2023 to increase the federal debt ceiling. That bill passed Congress with broad bipartisan support. That bill included a section detailing further changes the administration wanted to make to NEPA. Much of the final rule consisted of providing federal agencies detailed guidance to implementing the changes the administration wants to make to NEPA reviews.
Writing in The National Law Review, lawyers for Pierce Atwood LLP (Portland, Maine) said the Phase II rule was broader in scope than the CEQ's Phase I rule in 2022. Phase II seeks to "modernize" the 54-year-old law, they wrote.
The Phase II rule makes changes in the federal environmental review process that are likely to "accelerate the timeline for approvals of clean energy projects," the lawyers wrote. These changes in the new rule that likely would speed up federal agency approvals include:
- Narrowing the scope of projects subject to NEPA review by requiring that the agency's "major federal action" be subject to "substantial" federal control
- Detailing new methods for establishing categorical exclusions (CEs) that would exempt projects from federal review
- Allowing agencies to borrow CE decisions of other agencies
- Encouraging the use of programmatic environmental reviews for proposed actions that are broad in reach (overarching programs and policies)
- Confirming page limits and timelines for environmental reviews
In a statement, CEQ Chair Brenda Mallory said: "President Biden has unleashed historic investments to build our clean energy future, make long-overdue infrastructure upgrades across the nation, and deliver benefits to communities that have been historically left behind. These reforms will deliver smarter decisions, quicker permitting, and projects that are built better and faster."
Added John Podesta, the president's senior advisor for international climate policy, "The Biden-Harris Administration is committed to using every tool at our disposal to accelerate progress on transmission permitting and build a clean energy future. Today's final rule from CEQ fully implements the permitting efficiencies passed by Congress last year and shows the latest way President Biden is accelerating permitting for critical infrastructure."
In the final rule's section on addressing climate change, protecting public health, and encouraging better environmental outcomes, it said federal agencies "should consider the effects of climate change in environmental reviews and encourage identification of reasonable alternatives that will mitigate climate impacts." In addition, the rule helps "promote better environmental outcomes" by:
- Requiring environmental impact statements to discuss relevant risk reduction, resiliency, or adaptation measures, as well as the potential for disproportionate adverse effects on the environment and public health.
- Restoring and updating the long-standing approach to evaluating the significance of a proposed action's environmental effects, which was rolled back by the last Administration, to ensure agencies conduct the proper level of environmental review, and that reviews focus on the consequential effects of proposed actions.
- Where feasible, requiring environmental reviews to quantify the reasonably foreseeable greenhouse gas emissions of a proposed project to better understand its climate impacts, and
- Directing agencies to identify the environmentally preferable alternative(s) earlier in the review process, rather than waiting for the final decision.
U.S. Senator Shelley Moore Capito (R-West Virginia), ranking minority member of the Environment and Public Works Committee, blasted the CEQ rule: "The White House continues to say it is in favor of making it easier to build things in America while at the same time imposing more and more regulations that will do the opposite. Unfortunately, the rules finalized today favor only the projects the Biden administration views as compliant with its unrealistic climate agenda. By layering on even more project review requirements, this administration is adding new roadblocks to an already broken permitting process that will hinder job-creating energy, infrastructure, and transportation projects of all kinds."
Senator Joe Manchin (D-West Virginia), chairman of the Senate Energy and Natural Resources Committee, opposed the rule and said he would try to block it. "At a time when everyone agrees that it takes too long to build infrastructure in this country," he said in a statement, "the administration's new NEPA regulations will take us backward. All the White House had to do was implement the common-sense, bipartisan permitting reforms in the (2023 debt ceiling bill), that all sides agreed upon, but once again they've disregarded the deal that was made, the intent of the law that was signed, and are instead corrupting it with their own radical agenda. This will only lead to more costly delays and litigation."
In a statement, the House Natural Resources Committee, chaired by Republican Bruce Westerman (Arkansas), said the new NEPA Rule "deepens (the federal) permitting quagmire." He said the CEQ "is taking an imperfect process and somehow making it worse. The extremists in the White House are more interested in tying up crucial new projects in endless litigation than actually working to solve the problems facing Americans. This new rule will only serve as another win for our adversaries as the Biden administration continues making it virtually impossible to develop our abundant domestic resources. In pursuing Biden's radical environmental agenda, CEQ has managed to ignore statutory changes, making an already convoluted process even more wrapped up in red tape."
Although the rule has an effective date of July 1, a temporary restraining order from a federal judge could make the fate of the NEPA dependent on the outcome of this November's election. Presumptive Republican candidate Donald Trump likely will seek to reverse Biden's changes and reinstitute changes he proposed several years ago. And if Republicans capture the Senate and retain their majority in the House, they could try to block it.
Industrial Info Resources (IIR) is the leading provider of industrial market intelligence. Since 1983, IIR has provided comprehensive research, news and analysis on the industrial process, manufacturing and energy related industries. IIR's Global Market Intelligence (GMI) platform helps companies identify and pursue trends across multiple markets with access to real, qualified and validated plant and project opportunities. Across the world, IIR is tracking over 200,000 current and future projects worth $17.8 Trillion (USD).
