The Biden administration has released “phase two” of its proposal to reverse Trump-era reforms to the National Environmental Policy Act (NEPA).
The administration announced in the fall of 2021 that it would modify and restore NEPA regulations in two phases to how they were prior to 2020. In April 2022, phase one of the reforms restored three regulations.
On July 28, the White House Council on Environmental Quality (CEQ) released a rule to “modernize and accelerate environmental reviews under NEPA, encourage early community engagement, accelerate America’s clean energy future, strengthen energy security, and advance environmental justice.”
The Bipartisan Permitting Reform Implementation Rule would fully implement the reforms to NEPA included in the Fiscal Responsibility Act, such as clarifying the roles of lead and cooperating agencies, setting deadlines and page limits, and adding other requirements for timely environmental reviews.
The rule also includes a process for an agency to use another agency’s categorical exclusion, allowing them to review projects quicker. The rule encourages agencies to consider how a project can reduce the level of environmental review required, additional abilities for agencies to use categorical exclusions, and wider adoption of programmatic environmental reviews.
The administration said the reforms will help accelerate “everything from wildfire management and electric vehicle charging infrastructure to transmission and offshore wind.”
The rule will require agencies to consider environmental justice in environmental reviews and—for the first time—encourage agencies to incorporate measures to avoid or reduce disproportionate effects on communities.
The proposal also removes requirements on what public comments must contain to be considered by agencies.
Comments may be submitted on the proposed rule by Sept. 29. To submit a comment electronically, visit regulations.gov and search for document ID CEQ–2023–0003. Comments may also be mailed to Council on Environmental Quality, 730 Jackson Place NW, Washington, DC 20503.
CEQ will also conduct four public meetings on the proposed rule on the following dates:
• Aug. 26, 1-4 p.m. EDT.
• Aug. 30, 5-8 p.m. EDT.
• Sept. 11, 1-4 p.m. EDT.
• Sept. 21, 2-5 p.m. EDT.
Information for how to register for the meetings may be found at ceq.doe.gov/laws-regulations/regulations.html.
Phase one regs
Under phase one of the rule, the following three changes to the 2020 NEPA regulations were made last spring:
• Restoring the requirement that federal agencies evaluate all relevant environmental impacts of decisions they are making.
• Restoring the full authority of agencies to work with communities to find alternative approaches to minimize environmental and public health costs.
• Establishing CEQ’s NEPA regulations as a floor, rather than a ceiling, for environmental review standards.
Under the changes, federal agencies are required to consider direct, indirect and cumulative impacts of a proposed action, including the impact of climate change. In addition, agencies have the flexibility to determine the purpose and need of a project in order to lessen or avoid environmental harms. Finally, NEPA regulations were established as a floor to allow agencies to adjust procedures to meet specific needs.
Responses
Environmental groups have applauded the adminsitration’s efforts to reverse regulations set during the Trump administration.
“This latest proposed rule is an important step in that process and will bring much needed certainty and clarity to federal agencies and project sponsors,” said Earthjustice President Abigail Dillen in a statement. “It follows through on critical pieces of President Biden’s Executive Order on Environmental Justice, creating public engagement strategies and embedding cumulative pollution impacts analysis into the NEPA process. It also addresses Trump-era efforts to curtail public participation and access to justice.”
GOP members on the U.S. Senate Committee on Environment & Public Works condemned the measure, writing on X (formerly known as Twitter), “Once again, the Biden admin is attempting to layer on more requirements to achieve their own misguided policy priorities that create confusion in an already complicated regulatory process. This rulemaking just shows the need for further action by Congress to clarify the intent of NEPA.”
The solar industry announced their support for the rule. “Today’s Bipartisan Permitting Reform Implementation proposed rule will help speed permitting timelines for solar and transmission projects on federal lands that are critical for strengthening American energy security and tackling climate change,” wrote Sean Gallagher, senior vice president of policy for the Solar Energy Industries Association, in a statement. — Anna Miller, WLJ managing editor
