May 25, 2024

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Biden’s new permitting rule expands climate, environmental justice

3 min read
Biden's new permitting rule expands climate, environmental justice

President Biden’s newly revised environmental permitting rules to implement his climate and environmental-justice agenda faced swift pushback from construction groups and Republicans who say it will delay critical infrastructure and drive up costs.

The administration Tuesday released a final rule to revise the National Environmental Policy Act, or NEPA, the rule that governs how it approves new infrastructure projects. The revisions will “modernize, simplify and accelerate” the federal process, according to a White House fact sheet .

The new rule incorporates permitting reforms included in the 2023 Fiscal Responsibility Act and broadens mandates to include more climate- and environmental-justice related criteria. The rule, which unwinds some of former President Trump’s NEPA revisions, is part of Biden’s “all-of-government effort to build America’s clean energy future, strengthen energy security, shore up critical supply chains, and rebuild American infrastructure,” the White House said.

The new process will be applied to projects that start environmental review on July 1 or after, and current reviews will not be affected.

“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,” said Sen. Joe Manchin, D-WV, chair of the Senate Energy and Natural Resources Committee.


Attorney Larry Liebesman, a senior advisor at Dawson & Associates who helped craft the 1978 NEPA regulations, said Biden’s rule features a host of innovations that could speed up the process, as well as some new criteria that will require costly and timely documentation. Faster deadlines, increased agency coordination and even the right of project sponsors to sue if federal deadlines are not met will all likely hasten the often-lengthy process, he said.

“The regulations, if implemented properly, could help expediate projects,” said Liebesman, who specializes in the NEPA law. But “while they’re trying to speed things up, the rules are big on documentation, and documentation takes time and raises expenses, so it could drive up costs.”

The rule incorporates other FRA provisions like page limitations, coordination among agencies and making it easier for agencies to expediate reviews through categorical exclusions and so-called programmatic reviews. “There are a lot of procedures built in here,” Liebesman said.

On the climate side, the new rule requires deeper analysis of climate change impact and encourages “identification of reasonable alternatives that will mitigate climate impacts,” according to the White House. It also directs agencies to “consider environmental justice” and to “encourage measures to avoid or reduce disproportionate effects on communities.”

The rule also requires environmental impact statements to discuss risk reduction, resiliency, and adaptation measures.

Opposition sprang up quickly among infrastructure construction groups, with the Associated Builders and Contractors calling the regulations “unnecessarily onerous” and warning of delays and increased costs.

“While both Republicans and Democrats have long agreed on the need for commonsense permitting reform, this final rule fails to meaningfully improve environmental protections and actually expands and lengthens environmental reviews that already take years,” said Vice President of Regulatory, Labor and State Affairs Ben Brubeck in a statement.

The American Road & Transportation Builders Association said the revisions complicate the NEPA process instead of streamline it as was the goal of the FRA.

“The administration cannot have it both ways – it can either help rebuild and renew the nation’s infrastructure, or it can keep imposing new and expanded regulations,” said ARTBA President and CEO Dave Bauer.

And Sen. Joe Manchin, D-W.Va., chair of the U.S. Senate Energy and Natural Resources Committee, who pushed hard for the reforms in the FRA, said he would lead a Congressional Review Act resolution of disapproval to overturn the revisions.

“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. “This will only lead to more costly delays and litigation.”