The Trump administration’s new environmental regulations went into effect Sept. 14, 2020, and were designed to encourage energy infrastructure, including pipeline construction.
President-elect Biden (after he is sworn in) may attempt to undo these regulations using tactics frequently used by the Trump administration.
As we have previously discussed in this space, industry and other business groups have for years criticized the regulations used to implement the National Environmental Policy Act (NEPA) as burdensome and imposing needless hurdles. In the summer of 2020, the Trump administration, acting through the Council on Environmental Quality (CEQ), did a thorough rewrite of the NEPA rules.
The changes are intended, to use the words of the White House, to “modernize the … regulations to facilitate more efficient, effective, and timely environmental reviews by simplifying and clarifying regulatory requirements.”
Many of the changes relate to the “environmental impact statement” (EIS), something required for all major federal actions that significantly affect the environment, like roads, bridges, airports and pipelines carrying oil and gas.
The new rules drastically reduced the time needed for an EIS by setting a presumptive time limit of two years. Previously, the average completion time was four and one-half years. The amount of paperwork was also reduced, setting the presumptive page limit for an EIS at 150 pages, compared to a previous average of 661 pages.
The Trump administration also clarified that no EIS is required where the project involves minimal federal funding or involvement. This change would potentially reduce costs and delays by more clearly defining NEPA’s scope.
The CEQ changes also allow agencies to limit their consideration to a “reasonable number” of alternatives, as opposed to all reasonable alternatives.
And finally, the rule altered the definition of “effects” so that agencies need not consider the indirect or cumulative effects of a project. In the words of the CEQ, the “[c]umulative effects analysis has been interpreted so expansively as to undermine informed decision making, and led agencies to conduct analyses to include effects that are not reasonably foreseeable or do not have a reasonably close relationship to the proposed action or alternatives.”
President Trump stated that these new regulations would streamline an “outrageously slow and burdensome federal approval process” that has sidelined or suspended several high-profile oil and gas pipelines including the Keystone XL, Dakota Access, and Atlantic Coast pipelines.
Environmental groups, however, were quick to condemn the new regulations, which they argue will lead to increased pollution and limit the ability of communities and tribes to provide input on infrastructure projects. Such groups, as well as the attorneys general of several left-leaning states, have already brought lawsuits to invalidate the CEQ’s new regulations and to enjoin the CEQ from implementing, enforcing or relying on the new regulations.
How will the Biden administration respond to the changed regulations? It could follow the playbook shopworn by Trump. It might attempt to suspend the changed regulations while it goes through the lengthy process of rewriting the changes by the Trump administration. It might also refuse to defend lawsuits brought by attorneys general or environmental activists, both of which challenge the validity of the revised regulations.
Biden, however, may strike a middle path. There is no doubt that one of Biden’s key goals is protection of the environment, particularly on matters that affect global warming or environmental justice. On the other hand, Biden wants to promote infrastructure and economic growth. So, his administration may attempt to keep some of Trump’s changes, while seeking to dump others.
Only time will tell.
* This article first appeared in The Journal Record on December 31, 2020, and is reproduced with permission from the publisher.