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Biden Should Keep Trump’s Reforms to the National Environmental Policy Act
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Wind turbines in Oregon. Photo: Bureau of Land Management
As is the case anytime there is a change of party in the White House, the incoming Biden administration is examining the Trump administration’s actions — and moving to reverse or withdraw a number of them. In his first month in office, President Biden has issued executive orders reversing many Trump administration policies and initiating reviews of others.
David R. Hill is an adjunct senior research scholar at Columbia University’s Center on Global Energy Policy. He is an attorney with experience in the legal, regulatory, and environmental issues affecting the energy industry.
But the new administration should hold fire when it comes to one Trump action that could actually help Biden move forward with his economic, energy and climate initiatives: the reforms to the National Environmental Policy Act (NEPA) regulations. These reforms, finalized in 2020, revise rules put in place more than 40 years ago and could prove very useful — indeed essential — to developing renewable energy projects and upgrading other kinds of infrastructure, as well as creating jobs the country needs.
When running for president, candidates must set themselves apart from their opponents, and they do that by arguing their opponent is wrong on just about everything. Once elected, presidents are tempted to follow through on their campaign rhetoric, even when doing so would not be good policy. What takes real political courage — especially after a contest like the 2020 election — is for the new administration to retain policies of the prior one because that is the right thing to do, even when the new president’s supporters don’t like it.
In the case of NEPA, for years presidents of both parties recognized the need for reform. But until 2020, basically no fundamental reform happened. There are many reasons for that, but at this point, here’s the question: Should the 2020 reforms be retained, or should the new administration go through a likely years-long regulatory process to reverse them?
NEPA is a procedural statute enacted in 1970 with a straightforward purpose. It is intended to ensure that environmental consequences of federal actions are considered before decisions are made, and that the public is informed about proposed decisions and can offer input. Contrary to popular understanding, NEPA does not impose substantive environmental requirements, and so it is fundamentally different from other major federal environmental laws such as the Clean Air Act, Clean Water Act, Safe Drinking Water Act, Endangered Species Act, and many others.
And yet, over the years compliance with NEPA has morphed into an expensive, time-consuming process and has become the weapon of choice for opponents seeking to slow down or stop major projects that need federal permits or approvals. The type of project doesn’t matter — NEPA has been used to challenge projects as diverse as the Dakota Access Pipeline to transport crude oil, the Ivanpah Solar Facility to generate renewable energy, and the Obama Presidential Library.
In the 50 years since its enactment, NEPA has spawned an entire cottage industry of consultants, lawyers and litigation. Remarkably, even though NEPA imposes no substantive environmental requirements, it has become the most litigated environmental law in the country. NEPA analysis has become so complex, time-consuming, expensive, and subject to litigation that in an attempt to get some of their work done, federal agencies have adopted rules excluding entire categories of actions from NEPA, thus allowing them to act without conducting any NEPA analysis at all. Agencies apply these “categorical exclusions” to avoid doing NEPA analysis on more than 100,000 federal actions each year.
It’s understandable why they have done this. Once an agency walks through the NEPA entrance door, it can take a long time to find the exit. The White House Council on Environmental Quality reports that on average it takes the Interior Department five years to prepare an environmental impact statement. The Transportation Department takes 6½ years — and that doesn’t include what can be years of NEPA-related litigation. That NEPA analysis and litigation take this long isn’t because the government officials and contractors doing the analysis are incompetent. In fact, they are experts in their fields. It’s because there are no deadlines on the process and the entire original purpose of doing NEPA analysis has been lost along the way to creating mountains of data and information in the hopes of successfully defending against inevitable litigation.
The reforms finalized by the Council on Environmental Quality in July 2020 would help agencies make rational, informed decisions in a more timely way. Whether a project is going to be approved, rejected, or approved in a form different than originally proposed, the reforms help allow government decision makers, project sponsors, and the public review data and make decisions in a timely and more certain way. The reforms set a presumptive time limit of two years for an environmental impact statement and one year for an environmental assessment — and they do so without changing or weakening any substantive environmental laws or emissions requirements. These time limits would advance three important Biden priorities: addressing climate change, developing needed infrastructure projects, and creating jobs.
Deadlines aren’t anti-environmental. In fact, last year the State of New York did the same thing, but with even shorter deadlines. The state enacted a law requiring permitting decisions on renewable facilities to be made in one year — and within 9 months for some transmission facilities — even though those facilities, just like any other major project, can be subject to intense debates and local opposition. Notably, the new NEPA regulations allow its deadlines to be extended if necessary in specific circumstances.
The reforms also don’t call for ignoring a project’s effects on climate change. The 2020 rule requires consideration of all effects of a project that are reasonably foreseeable and have a reasonably close causal connection. The Trump administration had proposed limiting the consideration of greenhouse gas impacts, but commenters strongly opposed that proposal and fortunately it was dropped in the final rule.
No doubt retaining the NEPA reforms — and having the executive branch agencies get on with the necessary work of making changes to their own regulations to implement the new rule — would upset some of President Biden’s supporters. But as the many policy veterans in the new administration know, timing is of the essence in implementing a new president’s priorities, and this is particularly true in carrying out the new president’s climate, infrastructure and economic agendas. Preserving the 2020 NEPA reforms would help advance those objectives. Seeking to reverse them — which, by the way, cannot be done by executive order and would have to be done through rulemaking — not only would take years to do, it also would make accomplishing many of the president’s key objectives harder.
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NEPA is for regular citizens, and the Trump reforms were quite harmful despite your claim that NEPA is not substantive. The new time limit requirements for EAs and EISs are arbirtrary, and will be walked back by Biden’s CEQ. The lengthiest NEPA processes are often associated with a lot of public opposition, much controversy, and a lack of trust in the action agency. These situations cannot be fixed by artificially shortening the NEPA decision process. For “white-hat” projects that virtually no sensible person opposes, NEPA decision timelines are typically not an issue. As you have pointed out, most federal agency… Read more »