Biden restores some environmental permitting requirements loosened by Trump

The Biden administration on Tuesday moved to restore some of the environmental regulations governing infrastructure project permitting that were rolled back by the Trump administration. 

The White House Council on Environmental Quality (CEQ) is finalizing its “phase 1” changes governing the implementation of the National Environmental Policy Act (NEPA), which requires environmental reviews for projects such as highways or pipelines. 

The Trump administration axed or changed several regulations governing how NEPA is implemented, making changes that it said would speed up the permitting process — though critics argued they came at the environment’s expense.

The Biden administration this week targeted a few changes made under Trump that it described as causing agency challenges and sowing confusion with the general public. 

“Restoring these basic community safeguards will provide regulatory certainty, reduce conflict, and help ensure that projects get built right the first time,” CEQ Chair Brenda Mallory said in a statement.

“Patching these holes in the environmental review process will help projects get built faster, be more resilient, and provide greater benefits — to people who live nearby.”

In its 2020 NEPA regulatory rewrite, the Trump administration got rid of explicit requirements to consider an action’s “indirect” effects — those that happen later on or further removed, but are still reasonably foreseeable. 

It also got rid of the explicit requirement to consider its “cumulative” effects, which refers to how a project’s pollution may interact with other pollution sources to make some areas particularly polluted. 

Critics raised concerns about the impact of this change on communities that already face disproportionate pollution burdens and argued it could hinder the government’s ability to consider the effects of climate change. 

The Biden administration reaffirmed the need to consider the direct, indirect and cumulative impacts, according to a statement from the CEQ.

The Trump administration also sought to make the process more industry friendly by adding language requiring agencies’ “proposed alternatives” to a company’s projects to be based on the company’s goals. 

The Biden administration said that it would instead “give agencies the flexibility to determine the ‘purpose and need’ of a proposed project based on a variety of factors” and work with both companies and communities to try to minimize environmental harms. 

The administration also said that it would establish that the NEPA regulations are “a floor, rather than a ceiling,” when it comes to standards for environmental reviews. 

NEPA is a more than 50-year-old law that requires the government to consider environmental and community concerns before it approves various types of infrastructure projects, which can also include airports and buildings. 

Many industries have pushed for its requirements to be loosened, noting that environmental reviews can take years and slow projects down. 

But proponents have argued that strong regulations are important to protect communities from pollution and that weaker reviews open up projects to legal challenges, creating more uncertainty. 

The Trump administration made other changes — like setting a two-year time limit for the most stringent type of environmental review, when they typically take about 4 1/2 years — that have not yet been targeted by the Biden administration.

However, the White House council said in a statement that it will propose “phase 2” changes that improve the efficiency and effectiveness of environmental reviews “over the coming months.”

Christy Goldfuss, who was the CEQ chair during the Obama administration, told The Hill last week that she saw the phase 1 rule as “just to get started” rather than taking on the most impactful parts of the rule.  

“Really the bigger questions are around the phase 2 rulemaking” Goldfuss said.