How the Biden Administration Can Modernize Environmental Review
In the weeks following his inauguration, President Joe Biden has embarked on one of the largest economic recovery efforts in U.S. history. Central to this recovery will be an investment in major infrastructure buildouts, including transit, passenger rail, electricity grids, wind turbines, and much more. If the Biden administration is to successfully “Build Back Better,” however, it will have to address one of the largest environmental rollbacks in U.S. history—the Trump administration’s gutting of the National Environmental Policy Act (NEPA).
President Biden made clear his intention to rectify and improve the implementation of NEPA when, on his first day in office, he signed an executive order directing the White House Council on Environmental Quality (CEQ) to review the Trump-era NEPA regulations and consider suspending, revising, or rescinding them. This action will set into motion a multiyear process to fortify the federal approach to project review, and it raises the question of what must come next.
The history of NEPA—and how its implementation was dismantled under the Trump administration
Enacted by Congress in 1970, NEPA is often characterized as the bedrock of environmental law. The statute functions as a critical climate action and environmental justice tool by requiring agencies to consider the environmental and public health impacts of proposed federal actions. The real teeth of NEPA come from its set of implementing regulations, first issued by the CEQ in 1978. These implementing regulations detail how federal agencies must conduct their environmental reviews and provide open comment periods to members of the public who stand to be affected by the proposed federal action. In this way, NEPA also constitutes the bedrock of community empowerment within federal decision-making—at least, it used to.
In mid-July 2020, the Trump administration published a new, barebones version of the implementing regulations for NEPA under the guise of streamlining infrastructure construction. The original 1978 CEQ regulations were the product of an extensive, consensus-oriented public process involving state and local governments, labor groups, industry groups, and the environmental community. The Trump-era rule, true to the hollowness of its justification, went from proposed to finalized in just seven months, notwithstanding numerous appeals for more time and more than 1 million public comments. The changes represent the first rewrite of the NEPA regulations in 40 years, and they severely undermine environmental justice, the protection of ecological systems, and efforts to combat climate change.
As stated in a December amicus brief filed by Sen. Tom Carper (D-DE) and Reps. Peter DeFazio (D-OR) and Raúl Grijalva (D-AZ), the updated ruling subverts four core elements of the environmental review process: “consideration of cumulative and indirect impacts, analysis of all reasonable alternatives, public participation, and the requirement to consider environmental impacts before project commencement.” Put simply, the NEPA regulations were gutted. The result is a direct handout to the fossil fuel industry: It is an attempt to jam through the construction of projects that emit high levels of greenhouse gases such as pipelines while cutting the American public out of the process—especially communities of color, who disproportionately suffer from a toxic legacy of pollution.
NEPA antagonists, including the Trump administration, have long made bad-faith claims about the environmental review process being the main cause for infrastructure project delays. What limited data there is on project delays, however, suggest that they are more often the consequence of factors external to the design of the review process itself, such as insufficient funding on the part of project sponsors or insufficient staffing within federal agencies. By drastically changing the requirements for environmental review, the new regulations are likely to exacerbate staffing problems and coordination challenges across agencies—leading to additional unnecessary delays, not fewer.
Complementary actions the Biden administration has taken on NEPA
In addition to directing the CEQ to review the Trump-era regulations, President Biden has exercised his authority to strengthen NEPA through the following actions:
- Revoking Executive Order 13807, which, among other provisions, imposed an unrealistic two-year completion date for all environmental impact statements regardless of the complexity of the project. Such arbitrary deadlines are likely to increase the potential for inadequate or inaccurate evaluations, ultimately resulting in court challenges.
- Revoking Executive Order 13783, which, among other provisions, eliminated the CEQ’s guidance on greenhouse gas emissions and directed federal agencies to rescind the parts of their review processes that impede energy production, particularly from oil, natural gas, coal, and nuclear energy resources.
- Signing the Executive Order on Tackling the Climate Crisis at Home and Abroad, which, among other provisions, directed the CEQ and the Office of Management and Budget to “take steps” toward ensuring that federal infrastructure investment reduces climate pollution, requiring federal permitting decisions to consider the effects of climate change and greenhouse gas emissions, and accelerating the deployment of clean energy and transmission projects.
Recommendations for other actions the Biden administration should take on NEPA
To ensure President Biden’s $2 trillion infrastructure plan moves as quickly as possible with the greatest environmental benefit, the new administration must harness the ambition and momentum of his day-one executive order to strengthen NEPA implementation.
Specifically, the CEQ should rescind and replace the Trump administration’s NEPA regulations. Conducting a new rulemaking process will—and should—take time. The new NEPA regulations must be thoughtfully designed to better support environmental justice, encourage public participation, protect ecological systems, and combat climate change. They will need to be the product of early and in-depth engagement with a wide variety of stakeholders, from community advocates to industry players.
But the health and welfare of the American people cannot afford to wait. In the interim, the CEQ must take critical steps to enable federal agencies and the country at large to start moving forward. The following recommendations outline how the Biden administration should proceed in addressing NEPA within the first 100 days.
Stop the implementation of Trump-era NEPA regulations
In response to President Biden’s day-one executive order, the CEQ should issue corresponding guidance to federal agencies that provides greater certainty through a proposed timeline for rewriting the regulations. The CEQ should also direct agencies to do the following:
Stop the process of writing new implementing procedures for the Trump-era NEPA regulations. The Trump administration’s NEPA regulations require federal agencies to develop implementing procedures by September 2021. If finalized, these implementing procedures would carry more weight than the Trump-era NEPA regulations themselves. For example, the rule change that the U.S. Forest Service made to its implementing procedures in November 2020 will allow logging projects to bypass the NEPA environmental review process on nearly 200 million acres of national forest land. Comparably consequential rule changes have been pushed through by the U.S. Department of Energy to exempt liquefied natural gas facilities from NEPA review.
Refer to preexisting implementing procedures during CEQ’s regulatory review of the Trump administration’s NEPA regulations. Federal agencies have yet to finalize their implementing procedures for the Trump-era NEPA regulations. This directive would be synonymous to a return to the regulations as they were before the Trump-era changes. Federal agencies should also coordinate with the CEQ on any proposed application of the Trump-era rules while they are under review.
Explicitly account for cumulative and indirect impacts in any new or ongoing environmental reviews. The Trump-era rewrite of the NEPA regulations does not preclude agencies from accounting for cumulative and indirect impacts if they so choose; therefore, the Biden administration should make clear that all agencies are to consider them within their environmental analyses. Cumulative and indirect impacts—impacts that are remote in time or geography—are synonymous in many ways with climate change impacts. For example, a pipeline that transports oil, which is then combusted for fuel, will produce greenhouse gas emissions that affect areas beyond the location of the pipeline itself. The project proponent should have to plan for those kinds of effects, such as when the creation of two pipelines would double a state’s greenhouse gas emissions from stationary sources. Similarly, when an oil refinery is being sited in a community, the stand-alone pollution from that single refinery may not reach unhealthy levels. But project proponents should have to consider if there are other polluting facilities in that community that could, combined with the proposed oil refinery, contribute to toxic levels of pollution.
This is the exact circumstance that many environmental justice communities, which are overwhelmingly communities of color, face—toxic cumulative impacts from multiple polluting sources over years or decades. In Mossville, Louisiana, residents disproportionately suffer from chronic illnesses and disease due to the concentration of petrochemical plants in the aptly named “Cancer Alley.”
Equip agencies with adequate resources
Communicating with federal agencies about NEPA will be critical throughout the early days of the new administration, particularly as a considerable amount of federal funding is directed toward infrastructure projects. Agency budgets for NEPA, however, have continued to shrink over the past two decades—in part because of significant and deliberate cuts under the Trump administration. To effectively manage the permitting and environmental review processes under NEPA and prepare for the influx of project proposals, the Biden administration should:
- Fully fund the NEPA offices and programs at federal agencies.
- Assess the resources and staff that federal agencies are currently dedicating to NEPA in order to help identify where to direct resources.
- Prioritize hiring CEQ staff with backgrounds in or deep knowledge of environmental justice.
- Bring in detailees from relevant federal agencies and train a team of NEPA technical experts out of the CEQ who can be quickly disseminated across agencies to provide support for NEPA implementation.
- Implement the fee mechanism established through Title 41 of the Fixing America’s Surface Transportation (FAST-41) Act. Under FAST-41, the Federal Permitting Improvement Steering Council (Permitting Council) has the authority to create a fee structure for project sponsors. Collecting fees from project sponsors would help offset the costs borne by the federal government to conduct environmental reviews. The administration should then work in close contact with the Permitting Council to deploy detailees to the projects that are struggling to meet with their environmental review responsibilities.
Improve agency coordination and transparency
The environmental review process for a large-scale infrastructure project typically requires the participation of several federal agencies, at times complicating the arrival at a final decision on the project application. To support efficient agency coordination and NEPA transparency, the Biden administration should take the following actions:
Recognize and elevate the governance of NEPA as a critical conduit for environmental justice. Through the Executive Order on Tackling the Climate Crisis at Home and Abroad, the Biden administration has already committed to prioritizing environmental justice through the reestablishment under the CEQ of the White House Environmental Justice Advisory Council and the White House Environmental Justice Interagency Council. These councils should promote open engagement with the public throughout the environmental review process and ensure that the disproportionate impacts borne by low-income communities, tribal communities, and communities of color are invariably considered across federal agencies. Notably, President Biden has also created the new CEQ position of senior director for environmental justice and appointed Cecilia Martinez, a long-standing environmental justice expert who can play a pivotal role in the equitable and just implementation of NEPA.
Require project sponsors to disclose whether they have full funding lined up for a project when they begin their NEPA application process. Complex infrastructure projects are often stalled not because of the environmental review process itself but because of a lack of money or political support. Documenting the funding status of a project proposal would not function as a barrier to project initiation, but rather it would help prioritize projects that are most likely to be implemented, as well as identify reasons for project delays.
Work with Congress to eliminate the toxic “streamlining” provisions in FAST-41 that jeopardize public input, the consideration of alternatives, and government accountability through judicial review.
Invest in expanding and advancing the capabilities of the Permitting Dashboard. The dashboard, also established through FAST-41, currently allows the sponsors of qualifying major infrastructure projects to track the progress of their environmental reviews. Expanding the dashboard to include all infrastructure projects would promote greater transparency throughout the permitting and environmental review process. The dashboard could also support the provision of internal estimates of project timing, enabling project sponsors to plan effectively without the implementation of strictly enforced timelines.
Invest in the development of a secure, integrated data mapping tool. An integrated data mapping tool would help agencies avoid conducting redundant environmental analyses for proposed projects in the same location. Instead, one agency could have access to and build upon the mapping resources used in previous environmental impact assessments.
Conduct a survey across federal agencies to understand the factors influencing the completion times of environmental impact statements, including factors external to the NEPA process such as project funding; a lack of coordination on competing priorities; or opposition at state, local, or tribal levels.
Work with project proponents to get NEPA right
Maintaining a functioning relationship with project proponents will serve to minimize confusion throughout the change in administration and identify outstanding areas of potential improvement in NEPA governance. Additionally, the Biden administration should establish a working group to consider how the impacts of an infrastructure project on greenhouse gas emissions could influence its permitting process. Consistent with Section 213 of the Executive Order on Tackling the Climate Crisis at Home and Abroad, federal permitting decisions could be prioritized by how much they reduce greenhouse gas emissions.
If the Biden administration is to actualize its vision of building back a better United States, it will need to start with building back a better environmental review process. Strengthening the implementation of NEPA will require administrative guidance as well as legislative action. There are outstanding problems with the aforementioned problematic provisions in FAST-41, for example, which is being considered by Congress for reauthorization past December 2022. The recommendations above will help lay the groundwork for such future discussions and ensure that federal investments in infrastructure result in the kind of equitable and just economic revitalization, job creation, and clean energy future that the American people deserve.
Christy Goldfuss is the senior vice president for Energy and Environment Policy at the Center for American Progress. Elise Gout is a research associate for the Energy and Environment team at the Center. Sally Hardin is the interim director for the Energy and Environment War Room at the Center.
The authors would like to thank Jill Tauber and Stephen Schima from Earthjustice and Kevin DeGood and Cathleen Kelly from the Center for American Progress for their contributions to this column.
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