The Biden administration has rolled out its phase two rule for National Environmental Policy Act (NEPA) regulations, reversing Trump-era reforms.
The White House Council on Environmental Quality (CEQ) said its “Phase 2” ruling will “simplify and modernize the federal environmental review process under the National Environmental Policy Act,” but industry groups argue otherwise.
The new rule, the Bipartisan Permitting Reform Implementation Rule, focuses on streamlining permitting, but only for infrastructure related to renewable energy and transmission projects. The rule sets deadlines and page limits for environmental reviews and establishes one lead agency to handle reviews.
Under the new rule, projects receiving a categorical exclusion will not require an environmental review, and multiple agencies may issue a joint categorical exclusion.
In addition, reviews must consider climate impacts and environmental justice impacts on communities.
The regulation also removes provisions of the 2020 NEPA rule that the CEQ called legally questionable and said created litigation risks and jeopardized community input. This includes removing requirements on what public comments must contain to be considered by agencies and removing provisions that CEQ said “attempted to curtail judicial review.”
Back in late 2021, the administration announced it would modify and restore NEPA laws prior to 2020. In April 2022, they implemented phase one, which restored three regulations:
• Requiring agencies to evaluate all relevant environmental impacts of decisions they are making.
• Giving agencies the authority to work with communities to find alternative approaches.
• Establishing NEPA regulations as a floor, rather than a ceiling, for review standards.
Reactions
The National Cattlemen’s Beef Association (NCBA) and Public Lands Council (PLC) oppose the new rule, saying it fails to reduce NEPA’s regulatory burden.
“The Biden administration largely ignored the requirements Congress passed in the Fiscal Responsibility Act that would streamline NEPA processes,” said Kaitlynn Glover, NCBA executive director of natural resources and PLC executive director. “Instead, this final rule changes the focus of NEPA, making it more ambiguous, less targeted, and nearly impossible to navigate.”
Glover continued that the rule will make federal permitting, including for grazing permits, more difficult and expensive, and make it easier for radical groups to weaponize NEPA against ranchers.
House Committee on Natural Resources Chairman Bruce Westerman (R-AR-04) said the rule will further complicate the NEPA process. “This rule could have been a huge win for America had CEQ followed congressional intent,” he said. “Instead, this rule furthers the administration’s America-last agenda.”
The American Petroleum Institute (API) said the new rule will add “bureaucratic roadblocks to an already arduous process, jeopardizing the buildout of needed projects and low carbon infrastructure.”
API Senior Vice President of Policy, Economics and Regulatory Affairs Dustin Meyer said NEPA will continue to be the most litigated environmental statute, causing uncertainty, stalled projects and drained taxpayer dollars.
Earthjustice applauded the new rule. “The new updates reverse the Trump administration’s severe rollbacks of this bedrock law that favored polluting industries and restricted the public’s input on projects that could harm their health and livelihoods,” the group said.
The new rule goes into effect on July 1. — Anna Miller, WLJ managing editor
