Biden White House Proposes NEPA Guidance Updates

From left: Mallory, Secretary of the Interior Deb Haaland and Biden at a press conference discussing the regulations. (Stefani Reynolds/Bloomberg News)

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A proposal to restore certain environmental review guidelines for infrastructure projects that were modified by the Trump administration was announced by the Biden White House.

In a proposed rule issued this month by the Council on Environmental Quality, agencies would be required to consider issues related to climate change and environmental justice when evaluating environmental impact reviews. The reviews would pertain to highways, bridges, pipelines and other aspects of a state’s mobility grid. The council’s environmental impact regulations would serve as the basis for review standards governmentwide.

Additionally, the proposal calls for restoring the authority of agencies to develop and analyze approaches meant to minimize environmental and public health costs at the community level.

The proposal is anchored on provisions set by the National Environmental Policy Act. The Trump administration modified certain NEPA guidance with the aim of streamlining permitting procedures for infrastructure projects.

“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,” said the council’s chairwoman, Brenda Mallory, on Oct. 6. “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.”

The proposal published in the Federal Register points to President Joe Biden’s executive order seeking to repeal actions by the previous administration. According to the announcement, the Trump administration “directed [Council on Environmental Quality] to establish and lead an interagency working group to identify and propose changes to the NEPA regulations.”

Per the Biden administration proposal: “CEQ is engaged in a comprehensive review of the 2020 NEPA regulations to ensure that they provide for sound and efficient environmental review of federal actions, including those actions integral to tackling the climate crisis, in a manner that enables meaningful public participation, respects tribal sovereignty, protects our nation’s resources and promotes better environmental and community outcomes.”

Sen. Tom Carper (D-Del.), the leader of the Environment and Public Works Committee with jurisdiction over highway policy, touted the action. As he put it, “At a time when we are on the precipice of passing a once-in-a-generation investment in our nation’s infrastructure, the changes proposed today will improve certainty to avoid project slowdowns and litigation. Importantly, this proposal will restore the primary means of evaluating the impacts of federal action on the environment and ensure a more equitable process.”

NEPA, Federal Register by Transport Topics on Scribd

Added Carper, “Reinstating these provisions of our nation’s foundational environmental law is good for our planet and good for our economy: a win-win.”

Opponents of the proposed rule, primarily Republican transportation policymakers, had championed Trump-era NEPA modifications. Rep. Garret Graves (R-La.), ranking member of the aviation subcommittee, said, “For those of you that have been begging for more red tape, more traffic, more flooding, more lawyers, more litigation and less resilient communities and ecosystem, the White House just answered your prayers. For the rest of us, revisions to the environmental review process just implemented by the White House will further delay and require more studies for critical infrastructure projects to solve our traffic, flooding and coastal problems.”

Graves added, “Further, the revisions made will fail to actually help the environment because this will only impede our ability to restore Louisiana’s coast. This is what happens when you appoint people unencumbered by experience to key positions in our federal government. Facts and science are thrown out the window again.”

CEQ is inviting public comment on its proposed NEPA revisions. The council scheduled a pair of online public forums, on Oct. 19 and Oct. 21, to accommodate public input.

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