Today, the White House Council on Environmental Quality (CEQ) announced a final National Environmental Policy Act (NEPA) rule that will further complicate the NEPA process and drive increased litigation that will delay future projects. House Committee on Natural Resources Chairman Bruce Westerman (R-Ark.) issued the following statement in response:

"CEQ is taking an imperfect process and somehow making it worse. The extremists in the White House are more interested in tying up crucial new projects in endless litigation than actually working to solve the problems facing Americans. This new rule will only serve as another win for our adversaries as the Biden administration continues making it virtually impossible to develop our abundant domestic resources. In pursuing Biden’s radical environmental agenda, CEQ has managed to ignore statutory changes, making an already convoluted process even more wrapped up in red tape. Further, the Biden administration seemingly takes credit for permitting reforms secured by Republicans, which are the only redeemable pieces of this regulation. This rule could have been a huge win for America had CEQ followed congressional intent. Instead, this rule furthers the administration’s America-last agenda."

Background

CEQ was established as part of the National Environmental Policy Act (NEPA) when several major environmental laws were enacted in the 1970s. Housed within the Executive Office of the President, CEQ was historically tasked with overseeing agency compliance with NEPA. 

However, over the decades, the scope and power of CEQ has expanded dramatically through executive orders, as well as additional funding from the so-called Inflation Reduction Act and a departure from its initial mission. Biden specifically has worked to transform CEQ's role from overseeing NEPA compliance to the entity charged with implementing his eco-agenda, remaking federal agencies as vehicles of social change, and leading the war on domestic energy production.

The phase two NEPA rule announced today picks winners and losers and places new permitting hurdles on any project with a federal nexus, making it significantly harder to build critical projects. Ultimately, the regulations will stifle investment and hurt American competitiveness as developers are opened up to further litigation and increased red tape. The regulation aims to expand the effects that agencies must consider when permitting projects. These include the elevation of climate change and environmental justice considerations that are not found in underlying statutes.  Such a change will open federal agencies and all-of-the-above energy projects up to increased litigation and will stretch project timelines.

Earlier this year, the House of Representatives passed the Fiscal Responsibility Act (FRA), which contained a number of provisions from the Building U.S. Infrastructure through Limited Delays and Efficient Reviews (BUILDER) Act, introduced by U.S. Rep. Garret Graves (R-La.) and passed in the House of Representatives as a part of H.R. 1, the Lower Energy Costs Act, introduced by Majority Leader Steve Scalise (R-La.). Unfortunately, the regulation announced today by CEQ blatantly ignores the statute and reinterprets other provisions away from congressional intent.

The FRA also codified a number of provisions from Trump-era NEPA regulations that CEQ was legislatively compelled to include in their regulations, including:

• Implementing the One Federal Decision framework for all projects that must undergo NEPA review, facilitating the designation of a lead agency to set a permitting schedule and utilization of a single document for environmental reviews involving multiple agencies.
• Setting 150-page limits for environmental impact statements (300 pages if the project is of extraordinary complexity) and 75-page limits for environmental assessments. 
• Setting time limits of one year for environmental assessments and two years for environmental impact statements and providing a right of action to project applicants if the agency does not adhere to these deadlines. 
• Permitting project sponsors to assist agencies in conducting environmental reviews to help speed up the process. 

Last year, the U.S. House of Representatives passed the Fiscal Responsibility Act, which included much of U.S. Rep. Garret Graves' (R-La.) Building U.S. Infrastructure through Limited Delays and Efficient Reviews (BUILDER) Act. This legislation contained significant permitting provisions that will increase certainty and efficiency in the NEPA process. To learn more, click here.