Biden finalizes NEPA regulation, reversing Trump

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The White House on Tuesday announced it has restored key protections to a landmark environmental law governing the construction of pipelines, highways and other projects that President Donald Trump had swept away as part of an effort to cut red tape.

The new rule will require federal agencies to scrutinize the climate impacts of major infrastructure projects under the National Environmental Policy Act, a 1970 law that required the government to assess the environmental consequences of federal actions, such as approving the construction of oil and gas pipelines.

In 2020, Trump introduced major changes to the law’s implementation, saying the government would exempt many projects from review and speed up the approval process. His administration also said federal agencies would not consider “indirect” climate impacts. Trump and allies in the business community said the move would reinvigorate infrastructure projects across the nation.

Under the rule finalized by the Biden White House this week, regulators will now have to account for how government actions may increase greenhouse gas emissions and whether they will impose new burdens on communities, particularly poor and minority neighborhoods, that have already faced disproportionate amounts of pollution.

The move underscores how President Biden is looking for ways to push forward on his climate agenda despite rising concerns about cost increases in the economy. Triggered by the court order and under pressure to increase the supply of energy his administration announced on Friday that it would resume issuing oil and gas leasing, disappointing climate activists. The administration is also working to implement a roughly $1 trillion infrastructure bill passed last fall.

Business groups and Republicans are likely to argue that Tuesday’s move is going to raise costs and slow construction, but White House officials insisted that won’t be the case.

“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,” Brenda Mallory, chair of the White House’s Council on Environmental Quality, said in a statement.

The Trump-era changes made it more difficult for environmental and community activists to challenge federal infrastructure projects, limiting public review of the construction of roads, bridges and power plants — and freeing agencies from having to consider all the ways the projects could affect climate change .

Trump said he was cutting “mountains and mountains of bureaucratic red tape,” saving millions of dollars and kick-starting the economy.

Now, the Biden administration is telling agencies to consider the “direct,” “indirect” and “cumulative” impacts of their actions. The new rule will also give agencies greater leeway to consider less ecologically harmful alternatives and craft their own, tighter procedures for environmental assessments. The White House proposed the changes in October, and it promises a second phase of NEPA regulations about “the coming months.”

When Biden entered office, many of his environmentalist allies pushed the president to reinvigorate the law. The statute is considered one of the nation’s most consequential environmental laws, one widely imitated by other countries.

Its teeth lie in its requirement that federal agencies conduct environmental reviews and consult the public before breaking ground. Black and Latino communities in the United States that have suffered disproportionately from poor air quality and industrial pollution have used the law to win significant changes in projects that would have further harmed their neighborhoods.

Tracking Biden’s environmental actions

Other environmental advocates have leveraged the law in court to block logging, mining and oil drilling. Among the projects stymied using NEPA was the canceled Keystone XL pipeline, which received waves of protest and litigation from those concerned about climate change and water pollution from leaks. The company behind the project called it off after Biden nixed a crucial permit.

Revising the law has long been a priority for Republican lawmakers and industry groups representing oil and gas companies, logging interests and construction companies. To them, NEPA embodies delay, cost overruns and court battles. They have accused environmentalists of weaponizing the act to defeat projects they oppose.

For environmentalists, the final rule is a bright spot after a dark winter for Biden’s climate agenda.

About $555 billion in proposed climate action has been stalled in Congress since last winter, when a lack of support from Republicans and Sen. Joe Manchin III (DW.Va.) derailed the Democrats’ spending bill. With Congress taking little action on climate change, the administration has focused on using the president’s executive authority to regulate greenhouse gas emissions.

But a ruling by the Supreme Court in West Virginia v. EPA, a case that will be decided this year, could frustrate the Environmental Protection Agency’s ability to shift the United States toward cleaner sources of energy. And since Russia’s invasion of Ukraine sent oil prices soaring, Biden has faced an additional challenge: an emboldened fossil fuel industry calling for expanded drilling on federal land. Pressure to lower gas prices has pushed the president, who campaigned on tackling climate change, to encourage more domestic oil and gas production.

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