The Biden administration issued a final rule Apr. 19 that rolls back three changes the Trump administration made to streamline regulations under the National Environmental Policy Act (NEPA).
“Restoring these basic community safeguards will provide regulatory certainty, reduce conflict, and help ensure that projects get built right the first time,” said Brenda Mallory, chair of the White House Council on Environmental Quality (CEQ).
CEQ regulations take the form of guidance to federal agencies on how to assess and modify permit requests. Changes under President Trump in 2020 were welcomed by oil and gas companies as pragmatic ways to implement NEPA with less of the delays and litigation that have characterized application of the law.
Many Democrats and environmental groups argued the changes weakened the law’s protections. The CEQ rulemaking is a step toward addressing those objections. It was proposed in October with a promise that more extensive rollbacks would follow (OGJ Online, Oct. 7, 2021).
The latest rule from CEQ will restore a requirement that agencies issue separate evaluations of direct, indirect, and cumulative effects of a proposed project. The Trump changes directed agencies to evaluate all effects together rather than in separate buckets, so long as the effects are “reasonably foreseeable.”
Environmental activists worried that the Trump changes would allow agencies to brush aside climate impacts from greenhouse gases as unforeseeable or unquantifiable.
The final rule gives agencies authority to broadly consider a variety of alternatives to the proposed action. According to CEQ, the 2020 NEPA rule “limited federal agencies’ ability to develop and consider alternative designs or approaches that do not fully align with the stated goals of the project’s sponsor.”
The rule also specifies that NEPA regulations are “a floor, rather than a ceiling, for the environmental review standards.”
“More red tape”
Two spokesmen for oil and gas companies, with experience in lengthy NEPA permitting processes and legal disputes, said the Biden CEQ changes mean more uncertainty and conflict, not less.
Frank Macchiarola, an American Petroleum Institute senior vice-president, issued a statement saying the NEPA rewrite adds more red tape to the permitting process, not only for oil and gas projects but for wind farms, solar farms, hydrogen development, and carbon capture, use, and storage.
“We urge the administration to change course and establish a timely and efficient permitting process that supports the energy security needs of the US and our allies overseas,” Macchiarola said. “A well-functioning NEPA process is also critical for implementing the bipartisan infrastructure bill that was signed into law.”
The 2020 NEPA rule included a 1-year deadline for agencies to complete conforming regulations. The Biden administration pushed the deadline to 2023, which means the 2020 revisions have not yet gone into effect.