This week, the Biden Administration announced changes to the National Environmental Policy Act (NEPA) that stand to complicate and ultimately delay the development of infrastructure projects across the country. This action is both unnecessary and negates a four-year modernization effort finalized under President Trump. It also makes a mockery of the bipartisan effort that led to the $1.2 billion infrastructure law.
The National Environmental Policy Act has been an important part of the U.S. environmental landscape since 1970. The law sets up a process by which federal agencies like the U.S. Environmental Protection Agency or Department of Interior must consider effects of “major” actions that stand to “significantly” impact the environment. The implementation is overseen by the Council on Environmental Quality (CEQ) and in practice has applied to everything from the construction of roads, highways, and bridges, to the build-out of broadband infrastructure, renewable energy projects, and forest and land management.
Unfortunately, over the law’s 50-year history, this procedural law has been transformed into a tool used by the environmental left to delay the development of important infrastructure. NEPA has a well-known reputation for being the most litigated area of environmental law. Prior to the modernization effort in 2020, it regularly took decades to build highways, runways, and bridges. It’s important to understand that these delays were caused by never-ending challenges to how agencies considered these projects, not whether they were materially harmful to their respective environments.
Accordingly, the 2020 modernization effort injected efficiency into this federal process. It set two-year time limits for agencies to complete comprehensive reviews as well as reasonable page limits for required assessments. Less comprehensive reviews referred to as environmental assessments were limited to 75 pages and more comprehensive reviews were limited to 150 pages. Prior to the limits, these documents averaged over 600 pages in length. It also clearly defined the scope and limits of NEPA review. The new expectations of efficiency within the federal government were applauded by many local communities waiting for projects that had been held back by NEPA.
Fast forward to today. It’s increasingly clear the Biden administration’s drive to undo all the Trump administration policies takes precedence over concern with resulting consequences to the American people. The new NEPA requirements add layers of new considerations including an assessment of a project’s “cumulative” impacts. All one needs to know is that cumulative is code for limitless, never-ending review. The final rule also did away with “ceiling provisions” which means agencies can engage in more rigorous environmental reviews that go beyond what the regulations actually require.
In other words, building new pipelines, creating major construction projects, or developing mineral mines are now virtually impossible. The true loss will be to the workers deprived of construction jobs and the lost investment to surrounding communities. At a time when our energy system and local economies could really use a boost, this administration gives them more red tape.
It’s equally surprising and disappointing how tone deaf the Biden team continues to be. They are either unaware or indifferent to the current plight of the American people suffering under inflation and high gas prices. The silver lining to this final action, which officially goes into effect on May 20, is that it can now be challenged.