Aiming to speed up the federal permitting process, the Biden administration issued a final rule on April 30 modifying the implementation of the US National Environmental Policy Act, but the oil, gas and mining sectors say the government missed the mark.
The administration's Bipartisan Permitting Reform Implementation Rule applies permitting changes required under the 2023 US Fiscal Responsibility Act debt ceiling bill and incorporates climate change and environmental justice considerations in the National Environmental Policy Act (NEPA) review process followed by US mining and energy projects. The final rule released April 30 follows a proposed permitting rule released by the Council on Environmental Quality (CEQ) in July 2023.
"These reforms will deliver smarter decisions, quicker permitting, and projects that are built better and faster," Brenda Mallory, chair of the CEQ, said in a statement. "As we accelerate our clean energy future, we are also protecting communities from pollution and environmental harms that can result from poor planning and decision-making while making sure we build projects in the right places."
Accelerating project deployment
The CEQ's rule outlines various changes affecting a wide range of initiatives requiring NEPA review, including mining, energy infrastructure and semiconductor manufacturing projects.
The rule includes changes to the NEPA process, including "identifying a lead federal agency, setting clear one- and two-year environmental review deadlines and page limits, and incorporating procedures for agencies to adopt categorical exclusions established by other agencies as directed by the Fiscal Responsibility Act," the White House said in an April 30 news release.
The White House also said the rule would make permitting procedures more predictable and efficient by establishing a new method for categorical exclusions to aid low-impact projects, accelerated approvals for projects with mitigated effects, and removing environmental impact statement requirements for projects with long-term beneficial impacts and limited adverse effects.
Climate change and environmental justice
Other parts of the rule are dedicated to expanding the consideration of climate change and environmental justice in the permitting process, including by directing agencies to consider climate change in their environmental reviews.
The rule also requires environmental impact statements to address risk reduction and environmental adaption measures, identify environmentally preferable alternatives earlier in the permitting review process and quantify "reasonably foreseeable" greenhouse gas emissions of proposed projects, where feasible.
Environmental justice-related changes center on alterations to public input and community considerations in project reviews.
Agencies, for example, will be required to consider environmental justice — per the definition supplied in the rule — in environmental reviews. They must also consider community needs in outreach strategies. The CEQ also removed provisions contained in a 2020 NEPA rule the White House deemed "legally questionable," including content requirements for public comments and certain provisions related to judicial review.
Mining, oil and gas industries displeased
US mining and oil and gas industry groups criticized the CEQ's language.
"In this rule, the administration has succeeded only in further complicating the permitting process, increasing the financial burden on project sponsors, compounding the potential for litigation delays on projects, ultimately delaying or even halting projects that are valuable to our economic and national security," Rich Nolan, president and CEO of the National Mining Association trade group, said in an April 30 statement.
Nolan's comments echoed previous industry concerns that the CEQ's rulemaking could contribute to drawn-out legal fights over mining projects. The American Petroleum Institute said in a statement that the rule adds even more bureaucracy to an already arduous permitting process.
"NEPA will continue to be the most litigated environmental statute, resulting in more uncertainty, more stalled projects, and more taxpayer dollars drained from agencies and the courts," the statement reads.
Members of the solar industry had a different take.
"The solar and storage industry has already demonstrated that we can both balance conservation efforts and meet the administration's goal to site 25 gigawatts (GW) of renewable energy on public lands by 2025," Abigail Ross Hopper, president and CEO of the Solar Energy Industries Association, said in a statement. "We believe the new rules will allow us to permit the next 25 GW even faster without sacrificing our shared public lands, a win-win for both the solar and storage industry and the environment."
On Capitol Hill, opinions on the rule were sharply split, with moderate Democrat Sen. Manchin (W.Va.) and GOP members critiquing the rule.
"The White House continues to say it is in favor of making it easier to build things in America while at the same time imposing more and more regulations that will do the opposite. Unfortunately, the rules finalized today favor only the projects the Biden administration views as compliant with its unrealistic climate agenda," Sen. Shelley Moore Capito (R-W.Va.), ranking member on the Senate Environment and Public Works Committee, said in a statement.
Some leading Democrats, meanwhile, praised the rule.
"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, ranking member on the House Natural Resources committee.
The CEQ's rule will apply to projects beginning environmental review on or after July 1, 2024, the White House said.
