Biden’s NEPA revamp faces hurdles

By Kevin Bogardus | 04/30/2024 01:26 PM EDT

The White House wants to accelerate permits for clean energy projects, but opponents are gearing up to turn back the rule.

President Joe Biden steps off of Marine One.

President Joe Biden steps off Marine One at the White House on Friday. The administration's new permitting rule is key to achieving his environmental agenda. Susan Walsh/AP

President Joe Biden’s bid for a smoother, faster permitting process — the ignition key for his administration’s environmental agenda — is already facing roadblocks.

The White House Council on Environmental Quality on Tuesday finalized “Phase 2” reforms to the National Environmental Policy Act’s regulations. The rule is designed to speed up reviews for projects geared to bringing environmental benefits, such as solar energy storage and electric vehicle chargers, while protecting communities that often bear the brunt of fence-line pollution.

Yet critics of Biden’s climate change campaign are planning to turn back the rule.


West Virginia Sen. Joe Manchin has railed against the president’s handling of the climate law, which passed with the centrist Democrat’s hard-won support in 2022. Likewise, Manchin has argued that the permitting rule does not adhere to the debt ceiling agreement the president worked out with Republican leaders last year.

“Once again they’ve disregarded the deal that was made, the intent of the law that was signed, and are instead corrupting it with their own radical agenda,” Manchin said in a statement. “This will only lead to more costly delays and litigation.”

Manchin, chair of the Energy and Natural Resources Committee, has long been a central figure in the effort to pass sweeping bipartisan permitting reform legislation, which he wants to accomplish before he retires from the Senate after this year’s elections.

He has been talking to his counterpart on the panel, ranking member John Barrasso (R-Wyo.). The pair has kept the details under wraps, although there are plans to release a draft in the coming months.

In his statement on Biden’s rule, Manchin said he intends to lead a Congressional Review Act resolution to ax the regulation, which the administration calls the Bipartisan Permitting Reform Implementation Rule. Biden is unlikely to sign such a measure into law, considering it would void one of his top-priority rules, but other challenges await.

Republican state attorneys general said the rule was “a dramatic example of federal and administrative overreach” in comments filed last September. They stated CEQ doesn’t have authority to favor certain energy projects under NEPA and noted West Virginia v. EPA, the Supreme Court decision that curbed EPA’s power to regulate greenhouse gas emissions.

The rule could also be doomed if Biden loses his reelection campaign. Former President Donald Trump, who restricted environmental reviews the last time he was in office, could start a new rulemaking process to repeal Biden’s measure.

GOP and industry-led criticism of the regulation was swift.

“Unfortunately, the rules finalized today favor only the projects the Biden administration views as compliant with its unrealistic climate agenda,” said Sen. Shelley Moore Capito (R-W.Va.), ranking member on the Environment and Public Works Committee.

Mark Compton, executive director of the American Exploration and Mining Association, said, “The final rule will only increase the complexity of analysis that agencies will need to perform, delay decision-making, and drive increased litigation, ultimately blocking the realization of much-needed projects of all types.”

Firming up the rule’s ‘political durability’

Biden administration officials said the rule’s endurance across presidencies rests on improving the permitting process and expediting approvals, which have already moved at a quicker pace under their watch compared with their predecessors.

Data from the Transportation Department shows environmental assessments were completed in 9.6 months on average during Biden’s first three years in office, compared with the 15.4 months it took during the Trump administration, according to a White House fact sheet.

A senior administration official told reporters Monday that during the Trump administration, there were many projects that had rushed environmental reviews after not consulting relevant parties or considering climate impacts, leading them to be overturned via litigation. Biden’s regulation will take a different tack.

“I think part of this is by delivering real, grounded and robust reviews with fewer pages in faster time allows those documents to hold up and projects to actually proceed,” said the official. “I think that will firm up the political durability of this rule and this approach.”

Biden has sought other avenues to ease permitting, including broadening “categorical exclusions,” the fastest kind of environmental review, for projects assessed to have minimal impact on the environment, such as renewable energy, broadband internet and computer chip manufacturing.

The new rule makes it easier for agencies to establish those exclusions as well as expand the use of “programmatic reviews,” which allow agencies to assess categories of projects so they can move quicker on approving individual ones.

The latter provision was also part of the debt ceiling deal the president negotiated with Republican leaders. Other aspects of the deal are also in the rule, including tight deadlines and page limits for environmental reviews as well as having one lead agency handle the process.

Meeting Biden’s green goals hinge on approving renewable energy projects and their required power lines in record time.

“If we’re going to tackle the climate crisis, we need to build and deploy a lot of clean energy and clean energy infrastructure in this country,” John Podesta, the president’s senior adviser for international climate policy, said Monday. “That’s one of the reasons, may be a principal reason, why President Biden has elevated the permitting issue to the highest levels of government for the very first time.”

The rule will apply to projects starting the environmental review process on or after July 1. Environmental reviews in motion before that date will not be affected by the regulation.

CEQ first proposed the rule last July and received more than 148,000 public comments. It is scheduled to be published in the Federal Register on Wednesday, according to a notice filed by the council.

The final rule builds on the administration’s “Phase 1” regulation for NEPA, which was issued in 2022 and called for agencies to assess climate change during their environmental reviews. That was in response to the 2020 NEPA regulation drafted during the Trump administration.

The new rule reversed portions of the 2020 rule as well. It also directs agencies to consider environmental justice — the cause to help marginalized communities struggling with pollution — in their reviews as well as notify those places so they can take part in the process.

Praise for new rule

Democratic lawmakers pressured Biden to pull back from the previous Trump rule as well as strengthen environmental reviews to consider climate impacts and environmental justice.

“Today’s new rule corrects the previous administration’s unlawful NEPA regulations that tried to exempt industry from basic environmental review requirements and put polluters over people,” said Rep. Raúl Grijalva (D-Ariz.), ranking member on the House Natural Resources Committee.

Grijalva added, “I’m grateful to the Biden administration for working to restore legally durable environmental reviews while making the much-needed updates to address the climate crisis and environmental justice needs across our country.”

Environmental organizations, which had challenged the Trump rule in court, cheered Biden’s regulation.

“Meaningful community engagement is the key to unlocking our clean energy future,” said Christy Goldfuss, executive director of the Natural Resources Defense Council. “We do not have to sacrifice environmental justice, community safeguards, public health or environmental protections to fight climate change and build the clean energy economy we need.”

Green groups that have been critical of the Biden administration signing off on oil and gas projects want to see the permitting rule put to use.

Brett Hartl, government affairs director for the Center for Biological Diversity, said the new rule amounts to “the most significant improvements in decades to the NEPA process that analyzes gas pipelines, power plants and other polluting projects.”

Hartl added, “All federal agencies must now meaningfully adjust their environmental reviews so that fossil fuel companies’ profits aren’t put above the interests of our most vulnerable communities and our climate.”

Reporter Kelsey Brugger contributed.