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Eyeing changes, White House gives agencies two-year extension on NEPA

Highlights

Trump rule aimed to streamline infrastructure reviews

Agency implementation postponed amid review

Acknowledging the Biden administration may overhaul a Trump administration rule reining in National Environmental Policy Act reviews, the White House Council on Environmental Quality on June 28 extended the deadline by two years for agencies to issue regulations carrying out the prior administration's approach.

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The Trump administration regulation issued in July 2020 codified steps to streamline NEPA reviews, rein in their scope and limit the public comment process, as well as narrowing climate change considerations and allowing for more categorical exclusions. That rule drew support from some infrastructure developers including pipeline companies who sought to pare back litigation and delays often facing projects, while environmental groups contended the rule would undercut needed public input and undermine the bedrock environmental law.

Questioning legality, impact

In an interim final rule made public June 28, the White House Council on Environmental Quality said it has begun reviewing the 2020 rule and has "substantial concerns about the legality," the process that produced it, and whether it meets the nation's needs and priorities set out in Biden administration executive orders on tackling the climate crisis and basing decisions on sound science.

"These concerns include that some of the changes made to the NEPA regulations create confusion with respect to NEPA implementation, break from longstanding caselaw interpreting NEPA's statutory requirements, and may have the purpose or effect of improperly limiting relevant NEPA analysis, with negative repercussions in critical areas such as climate change and environmental justice that are inconsistent with the mandates of [Executive Order] 13990 and E.O. 14008," CEQ said in an unpublished version of the rule.

It argued an extension will provide time for it to review and possibly revise the NEPA rule, as well as ensuring agencies avoid wasting time and resources to conform with a rule that may change.

Seeking a balance

In conducting the review, CEQ said it would assess how to amend NEPA rules to "deliver an efficient environmental review process that ensures robust participation and environmental protection." In seeking to deploy large amounts of clean energy resources and substantially expand electric transmission, the administration faces a balancing act in developing a rule that avoids opportunities for excessive delays, some energy industry experts have said.

Extending the implementation deadline without seeking public comments is proper, CEQ said in the interim rule, because the rule relates to agency organization, procedure or practice, and is therefore exempted from the Administrative Procedure Act notice and comment requirements. The rule was scheduled to be published June 29 in the Federal Register.

The Biden administration has previously discussed its plan to revise the regulation. For instance, CEQ had asked federal district courts to return the rule to the agency, noting it had already begun considering changes.

In one of several court cases challenging the rule, Judge James Jones of the US District Court for the Western District Court of Virginia, Charlottesville Division, on June 21 found that a petition filed by a coalition of environmental groups came too early and that the groups could file a challenge once an agency rendered a decision on a particular project that in plaintiffs' view violated NEPA.