Biden takes big step on rules for environmental reviews

Biden takes big step on rules for environmental reviews
© Greg Nash

The White House on Wednesday took a significant first step toward restoring safeguards that the Trump administration cut from its regulations governing environmental reviews.

The move was the first in a two-step process, with advocates and industry leaders expected to keep a close eye on both rules, since what comes next will define exactly where the Biden administration stands on the National Environmental Policy Act (NEPA), which requires the government to consider environmental impacts of major projects like airports, highways and pipelines and carry out environmental reviews before construction begins. 

The White House said the measures announced Wednesday constitute “phase 1” of its rulemaking and that it would develop a “phase 2” in the coming months. Some advocates are hoping the next phase will go even further to address issues like environmental justice.

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“There are a lot of insidious things in the Trump rule. It was devastating to NEPA,” said Cheryl Wasserman, former associate director for policy analysis at the Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance who worked at the EPA for more than four decades.

The Trump administration scaled back NEPA in 2020 with changes that it said were intended to modernize implementation of the 50-year-old law. The rollback drew cheers from industry leaders, who said they could now get projects done faster, but criticism from advocates who argued that it undermined environmental protections that had been in place for decades.

On Wednesday, the White House Council on Environmental Quality announced that it was making three major changes to the way environmental reviews mandated by NEPA are approached.

The council said it will stipulate that the regulations are “a floor, rather than a ceiling” for what federal agencies can require, give more flexibility to agencies to consider project alternatives and reinstate language that explicitly requires consideration of “indirect” and “cumulative impacts.”

Cumulative impacts look at how new projects would combine with nearby existing ones to affect a community overall. The language seeks to prevent communities from being overburdened by pollution and other environmental issues.

The Biden administration’s inclusion of that language is expected to restore consideration of climate change in environmental reviews.

The Environmental Defense Fund was among the groups that welcomed Wednesday’s announcement.

“This first-phase proposal is a really important first step ... in particular, [we are] happy to see that the proposal restores the responsibility of the federal government to consider climate and environmental justice impacts associated with federally supported projects,” said Rosalie Winn, senior attorney with the Environmental Defense Fund.

But the Trump administration made other significant changes to the NEPA process, many that were not addressed in Wednesday’s proposal such as shortening the time limit for rigorous environmental reviews and setting page limits for the analyses.

Environmentalists argue there’s much more that needs to be done to undo the Trump rule.

“There are threshold questions of when NEPA applies, there are questions about judicial accountability in the courts that need to be addressed, there are unnecessary barriers to public voices and input and judicial review in the 2020 regs that need to be addressed, there are enormous loopholes for avoiding NEPA review entirely,” said Stephen Schima, a senior legislative counsel at Earthjustice.

Industry groups, meanwhile, have praised many of the provisions instituted by the Trump administration, including the shorter timeline for reviews.

“There were a number of things that just provided clarity ... emphasizing the importance of being concise, focusing on significant environmental effects,” said Chad Whiteman, vice president for environment and regulatory affairs at the Chamber of Commerce’s Global Energy Institute.

“They included provisions ... to focus on the project sponsor’s needs,” he added.

Nick Goldstein, vice president of regulatory and legal issues for the American Road & Transportation Builders Association, highlighted a provision that he said gave more authority to lead agencies carrying out multi-agency reviews.

He said the change by Trump allowed “the agency that knows the most about the project ... to be in sort of the catbird seat on the process.”

Overall, some environmental advocates hope that the Council on Environmental Quality tackles its second rulemaking with an eye toward issues that disproportionately affect disadvantaged groups.

Environmental justice, or policymaking that addresses disproportionate effects, has been a major stated priority of the Biden administration.

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Mustafa Santiago Ali, who led the EPA’s Office of Environmental Justice during the Obama administration, praised Wednesday’s move by the White House but said he wanted to see detailed action on environmental justice in the next stages.

“There’s an overall set of burdens that are happening inside of communities ... all these various factors need to be included in that overall analysis,” said Ali, who is now a vice president at the National Wildlife Federation.

“You’re taking a holistic approach, especially when someone is building something in a community, so of course you’re going to talk about health impacts and environmental impacts. But we’re also looking at what would be the economic opportunities for communities,” he added.

Other aspects that bear a closer look, he said, include transportation, education and housing.

Winn, with the Environmental Defense Fund, said climate change and environmental justice are two areas that deserve attention in the next phase of rulemaking.

“We think there are opportunities to better enhance public involvement in the NEPA process,” she said. “There are additional opportunities to further embed consideration and evaluation of climate and environmental justice considerations in the next round as well.”