The White House Council on Environmental Quality proposed rule ignores recent NEPA amendments included in the debt limit deal.
The Council on Environmental Quality (CEQ) has proposed another round of modifications to its regulations that govern how federal agencies assess the environmental effects of their proposed projects, programs, and permitting prior to making decisions. On its face, the proposal implements AGC-backed permitting efficiencies directed by Congress in recent statutory amendments in the Fiscal Responsibility Act of 2023 – including setting hard deadlines and page limits for agencies’ reviews, adding a process for a federal agency to use another agency’s categorical exclusion.
But the devil is in the details: new language would undercut important Trump-era 2020 modifications specifically aimed at limiting the endless analysis of unquantifiable environmental harms and benefits and, conversely, introduce “innovative approaches to NEPA” that direct National Environmental Policy Act (NEPA) reviews toward the Biden administration priorities of climate change and environmental justice. AGC will deliver a statement at a public meeting on September 11 and submit comments in advance of the September 29 deadline.
Republican Congressional leaders were quick to respond. Lead negotiator of the debt limit bill for House Republicans, Garret Graves (R-La.) said the changes would “actually increase the number of frivolous lawsuits challenging environmental reviews” and would “absolutely torpedo any opportunity to do another round of negotiations [with the White House].” Also responding was Senator Shelley Moore Capito (R-W.Va.), Ranking Member of the Senate Environment and Public Works Committee, saying, “Once again, the Biden administration is attempting to layer on more requirements to achieve their own misguided policy priorities that create confusion in an already complicated regulatory process.”
AGC is still reviewing the proposal. A key concern is that the proposal would introduce unclear new terms and concepts that will – if finalized – increase litigation risk and further increase the time and expense of projects. Indeed, mandating more requirements in less time and fewer pages sets agencies up for failure.
AGC is prepared for changes to the environmental review process to be a marathon. Unfortunately, we expected the administration to cherry pick the reforms included in the Fiscal Responsibility Act and only implement the ones that further their agenda. AGC will continue to oppose an unlawful expansion of NEPA from its intended, procedurally-focused review process to an action-forcing measure designed to force a preferred outcome.
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