WASHINGTON – The White House proposed restoring parts of one of the nation’s bedrock environmental laws Wednesday, requiring agencies to conduct a climate analysis of major projects and give affected communities greater input into the process.
If finalized, the move to change how the government reviews pipelines, highways and other projects under the National Environmental Policy Act would reverse a significant rollback by the Trump administration. While the proposal won praise from environmentalists, it came under criticism from developers, and could make it harder to upgrade the aging bridges and roads President Biden has pledged to rebuild.
Brenda Mallory, who chairs the White House Council on Environmental Quality, said in a statement that the changes would not delay major projects because they would make it easier to forge a consensus on how they would be built.
“The basic community safeguards we are proposing to restore would help ensure that American infrastructure gets built right the first time, and delivers real benefits – not harms – to people who live nearby,” she said. “Patching these holes in the environmental review process will help reduce conflict and litigation and help clear up some of the uncertainty that the previous administration’s rule caused,” Mallory said.
Mallory added that the move would restore the law’s focus on climate change, a top diplomatic priority for President Joe Biden ahead of a United Nations climate summit in Glasgow next month.
In addition, the White House said the proposed rule would encourage agencies to study alternatives to projects that face opposition from affected communities, and it would clarify that the law’s requirements are “a floor, rather than a ceiling” when it comes to environmental reviews.
Chad Whiteman, vice president for environment and regulatory affairs at the U.S. Chamber’s Global Energy Institute, said the Biden proposal would delay the completion of infrastructure projects at a time when Congress is sparring over how to pass a roughly $1 trillion bipartisan plan to upgrade the country’s roads, bridges and ports.
“By rolling back some of the most important updates to our antiquated permitting process, the Biden Administration’s new proposed NEPA rule will only serve to slow down building the infrastructure of the future,” he said in a statement. “Important projects that address critical issues like improving access to public transit, adding more clean energy to the grid and expanding broadband access are languishing due to continued delays and that must change.”
Last year, Trump overhauled the way agencies applied the National Environmental Policy Act, known as NEPA, on the grounds that it imposed too many costs and requirements on developers. The law requires the federal government to analyze the impact of a major project or federal action on the environment – and to seek public input – before approving it.
Activists have used the 51-year-old law as an effective tool to delay the construction of many large-scale projects through court challenges. A contested federal review of the Keystone XL pipeline, for example, extended the process for so long that Biden was able to block it even though Trump approved the project just after taking office.
Under the Trump rule, some projects and activities were subject to shorter environmental reviews, while others were exempted from environmental reviews altogether. And in one of the most contentious changes, agencies were directed not to assess projects’ “indirect” or “cumulative” impacts, such as greenhouse gas emissions linked to climate change.
Trump called the regulatory rollback a “truly historic breakthrough” that would accelerate the construction of infrastructure projects and reclaim “America’s proud heritage as a nation of builders.”
But the law’s supporters argue that it provides Americans – particularly those in poor and minority communities that bear the brunt of many polluting industries – with input on proposals that will affect them for decades to come.
A slew of environmental groups challenged the Trump rule in court, arguing that it was “arbitrary and capricious” under the Administrative Procedure Act. In court filings, however, the Biden administration argued that the existing rule should not be struck down before a full review of its merits was completed.
In June, a federal judge in Virginia dismissed the Southern Environmental Law Center’s challenge to the Trump administration policy, saying the complaint was premature. The group has asked the U.S. Court of Appeals for the 4th Circuit to overturn the decision.
Kym Hunter, one of the group’s senior attorneys, said in a phone interview that the White House’s proposal doesn’t go far enough.
“The Trump rule was 66 pages of changes, and every single one of them was illegal,” Hunter said. “So we still maintain that the Trump regulation should be vacated. And we’re continuing to press that in court.”
Senate Environment and Public Works Committee Chairman Tom Carper, D-Del., who played a key role in crafting the bipartisan infrastructure bill, called the proposed rule a “welcome move” that would safeguard the environment and communities.
“Reinstating these provisions of our nation’s foundational environmental law is good for our planet and good for our economy – a win-win,” Carper said in a statement.
The proposed rule represents the first phase of a two-step regulatory process. In the coming months, the White House plans to propose a second, broader set of changes that officials said would address how agencies should address climate change and provide greater certainty for industry groups while conducting reviews under the law.