Biden administration seeks reforms of environmental reviews to hasten permitting process
As a means to accelerate a clean energy transition and gather more public input on the process, the Biden administration last week proposed the Bipartisan Permitting Reform Implementation Rule, effectively seeking to overhaul the environmental review process.
Similar permitting changes were directed by Congress under the Fiscal Responsibility Act of 2023, and the new items proposed by the White House Council on Environmental Quality (CEQ) would essentially take that framework and build upon it. The new rule would modernize and speed up environmental reviews under the National Environmental Policy Act (NEPA), push community engagement early and often, and incorporate environmental justice and energy security concerns.
“These reforms to federal environmental reviews will deliver better decisions, faster permitting, and more community input and local buy-in,” Brenda Mallory, chair of the CEQ, said. “This rule is a key element of President Biden’s permitting reform agenda that will help us speed the build-out of our clean energy future while reducing pollution and harms in communities that have been left out and left behind for far too long.”
The rule pushes reforms to NEPA included in the aforementioned Fiscal Responsibility Act, such as clarifying the roles of lead and cooperating agencies in decisions, instituting deadlines and page limits, creation of a process for federal agencies to use others’ categorical exclusions for projects with few environmental effects, and generally working to make things clear and on schedule.
Additionally, the rule will encourage agencies to consider projects’ mitigation measures to reduce the level of environmental review required of them, add means for agencies to create categorical exclusions and allow for greater adoption of programmatic environmental reviews among a broad category of projects, be they wildfire management, electric vehicle charging infrastructure or offshore wind.
One particularly notable change: projects deemed to have only significant, long-lasting positive impacts will not require environmental impact statements.
“This proposal would modernize and streamline our process for developing new, desperately needed renewable energy projects and getting them connected to the national grid,” Elizabeth Gore, Environmental Defense Fund senior vice president for political affairs, said. “Clarifying our permitting processes under NEPA will allow us to reduce the backlog of deserving energy projects waiting to be built, which will move us toward the clean energy economy that we need to in order to protect all Americans from the climate crisis.”
Climate change effects would need to be considered in environmental reviews under the proposed changes though, and organizations would need to investigate reasonable alternatives to mitigate climate impacts where needed.
However, at least one of the proposed changes would be to officially reverse course on certain provisions of the 2020 NEPA rule, introduced under the Trump administration. The Biden administration pointed to detailed requirements its predecessor instituted on what public comments needed to not be thrown out by agencies, as well as provisions that struck at judicial review, such as one that limited the ability of courts to provide injunctive relief even in the face of flagrant, hazardous violations of NEPA. These had not only jeopardized community input, according to the Biden administration they also raised serious legal risks.
While clean energy groups in particular have come out in support of the proposed rule, there has been caution as well. The American Clean Power Association (ACP), for example, lauded efforts to accelerate environmental reviews for clean energy projects and infrastructure, but warned of the lack of permanence presidentially-instituted reforms could have.
“While we are appreciative of the steps the Council on Environmental Quality (CEQ) has taken to undertake these much-needed reforms, it’s critical that Congress build upon these actions and tackle comprehensive, meaningful reform to improve the efficiency of the permitting process for clean energy projects and infrastructure,” the ACP said in statement.
