White House Updates Bedrock Environmental Rules, Setting Up Legal, Legislative Battle Over Energy, Infrastructure Permitting

Faegre Drinker Biddle & Reath LLP

On July 15, 2020, the White House released the long-anticipated Final Rule entitled, “Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act (NEPA).” According to the White House, the updated regulations will reduce federal permitting time for major projects to two years, at most. Opponents were quick to characterize the move as weakening environmental protections and promised to challenge the rule in court.

NEPA was passed in 1970. The law created the Council on Environmental Quality and requires executive branch agencies to review projects through environmental impact studies and environmental assessments. Increasingly, developers and industry have criticized that process for being overly burdensome and time-consuming. The Final Rule makes several changes to how agency review will be conducted moving forward and the considerations and priorities for those reviews. As the administration seeks to restart the economy, it continues to look for opportunities to remove barriers for industry.

Despite intentions, it’s possible that the release of the Final Rule and impending legal battles could create more confusion in the short-term. Opponents plan to challenge the proposal on several grounds, including that the new streamlined regulations do not fulfill the statutory language enacted by Congress. Opponents also point to the rule’s weakening on considering the cumulative impacts of climate change and the ability for individuals to participate in the review process of projects in their area.

The timing of the rule is noteworthy. This week, the House Transportation & Infrastructure Committee marked up its Water Resources Development Act reauthorization, and both chambers passed a broader infrastructure proposal earlier this month. The Senate Environment & Public Works Committee has also passed a reauthorization to the Highway bill, and both parties are looking to infrastructure as a critical driver of the country’s economic recovery.

Finally, it will be worth watching the political fallout around the move. The rule’s release falls within the window to potentially be repealed by the Congressional Review Act if Democrats are successful in the November elections. In fact, this could become an Election Day issue in some areas experiencing local issues from either side.

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