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Critics say the latest update to the rules could bog down project timelines. But state transportation officials and environmental advocates welcomed the changes.
Getting the green light to build infrastructure projects could be a little more complicated, after the Biden administration strengthened rules to protect the environment and local communities on Tuesday.
The Council on Environmental Quality, a part of the White House, announced three major changes to how the National Environmental Policy Act is enforced. All three would restore those rules to how they were before the Trump administration revised them in 2020, in an effort to speed up construction.
Environmentalists consider NEPA to be one of the most important environmental laws on the books. The law requires the federal government to review big projects – like highways and dams – to see how they would affect plants, animals and people before construction begins.
But state and local officials, Republican politicians and construction industry leaders have long complained about the delays that the lengthy reviews can have on building infrastructure.
That tension surfaced again Tuesday after the White House’s announcement. The changes were no surprise, but they come in the middle of a struggle between the Biden administration and state officials (particularly Republicans) over the kinds of projects that should be built with money from the 2021 federal infrastructure law.
The Democratic president is also rolling back key changes made by his Republican predecessor.
“We identified those three things as the most impactful from the Trump administration’s 2020 rule that were going to impact our ability to have good, thoughtful decisions,” Brenda Mallory, the chair of the Council on Environmental Quality, told county officials at a conference in Washington in February.
- The new rules specify that federal agencies need to consider the “indirect” and “cumulative” environmental impacts of the projects they are reviewing, not just the “direct” impacts, as had been the case in the 2020 rules. The Biden administration specified that the effects on climate change should be one of the considerations taken into account.
- Tuesday’s changes give federal agencies more flexibility to consider alternatives to proposed projects that would meet the same goals. They also let federal agencies work with local communities to determine the “purpose and need” of a given project, which might differ from what a project’s sponsor (often a private company) proposed.
- Federal agencies also have more flexibility to tweak their environmental review processes for the types of projects they handle. That means they could be more stringent than the procedures specified by the Council on Environmental Quality, but not less stringent.
Melissa Savage, the director of the environmental program for American Association of State Highway and Transportation Officials, said the group supported the changes. A big reason the group of state transportation agencies backed them is because they reinstitute familiar rules, Savage said.
“We’re supportive of restoring those provisions from 1978, because it gives us the certainty you need when you’re doing infrastructure projects,” she said.
The group also backs the Biden administration’s approach of taking smaller steps when overhauling the environmental regulations, Savage said. The Trump administration’s 2020 changes were far-reaching, but the Biden administration plans on revising other parts of those rules in the future instead of all at once.
State transportation officials that worked on the issue did not raise concerns that the changes that went into effect Tuesday would slow down projects, Savage said
In fact, it’s unclear how much the Trump era regulations had sped things up, even though that was their overarching goal.
The Trump rules had not been in place long, she noted, and some aspects of those rules would have put more burdens on state officials that could have slowed things down. For example, the rules required states to publish a cost estimate for environmental reviews, but it was unclear how state agencies should calculate those costs or what they would be used for, Savage noted.
Other Groups Weigh In
The National Association of Counties, though, was wary of the changes.
“We are concerned by the administration’s rollback of the 2020 NEPA regulations,” said Brian Namey, a NACo spokesperson, in an email.
“We advocate for NEPA updates that balance environmental stewardship, streamlining the permitting process, fostering conditions for economic growth, and strengthening our nation’s infrastructure at the local level,” he said.
The U.S. Chamber of Commerce also weighed in against the new regulations.
“It should never take longer to get federal approval for an infrastructure project than it takes to build the project, but that very well may be the result of the administration’s changes that revert back to the broken 1978 NEPA review process,” the chamber said in a statement.
But environmental advocates said the criticism about NEPA delaying projects is mostly misplaced.
Many of the delays for projects occur because they don’t have funding or because they have significant opposition in nearby communities, said Kabir Green, the director of federal affairs for the Natural Resources Defense Council.
“I think industry and Republicans have carried a pretty tired narrative down the road for a couple of decades now that NEPA is this tool of delay and sort of obfuscation,” he said in a phone interview. “All the data shows that when the NEPA process is fully funded and implemented well, it leads to good outcomes.”
Green said the Trump administration’s attempt to speed things up by not allowing federal agencies to consider the indirect or cumulative impacts of the projects they were reviewing were short-sighted. That was one of the changes the Biden White House pulled back Tuesday.
“I like to think of NEPA as a ‘look before you leap’ law,” he said. “[The Trump administration rule] is basically saying you have to close your eyes before you jump off the cliff. It doesn’t make any sense.”
Legal experts said the heated disputes over the environmental law can’t all be solved by presidential administrations, because many concerns go back to the law that Congress wrote.
“NEPA is like a Dr. Jekyll / Mr. Hyde,” said Victor Flatt, a professor specializing in environmental law at the University of Houston Law Center.
“When used correctly, it definitely improves projects and directs them to something overall more efficient and environmentally protective. However, it can be (and often is) used as a tool for delay,” he said in an email.
Many presidents try to “speed up” the environmental review process with changes in regulations, Flatt noted. “But without a change in the law itself, these administrative changes almost always run afoul of the law, making the process even longer for projects that get caught up in it.”
And pushing projects through the process without the right kinds of reviews can lead to massive failures, said Patrick Parenteau, a professor and senior counsel in the Environmental Advocacy Clinic at Vermont Law School, in an email message.
“Experience shows that when the NEPA analysis is done right it improves the outcomes for public health, air and water quality, community safety, and sustainable development,” he said.
“And when it is done wrong it leads to disasters like the Teton Dam collapse [in Idaho], the straightening of the Kissimmee River which damaged the Everglades [in Florida], the construction of the Mississippi River Gulf Outlet that brought hurricane Katrina into the heart of New Orleans and many others. NEPA also forces consideration of alternatives that are frequently more cost effective as well as less environmentally damaging,” he said.
Parenteau said there’s no reason the new regulations, by themselves, would slow down the environmental review process.
“They are the rules that were in effect for 50 years before the Trump reversal. It may depend on whether there is still a core staff of NEPA experts at the various agencies,” he wrote. “There was a brain drain [in the federal agencies] during the Trump years.”
Daniel C. Vock is a senior reporter for Route Fifty based in Washington, D.C.
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