June 2022, Vol. 249, No. 6

Editor's Notebook

Biden’s ‘Big Project’ Environmental Reviews

By Michael Reed, Editor-in-Chief

With the Biden administration bringing back a stricter review process for pipeline and other major infrastructure projects, it seemed like a good time to look at the origin of the policy and what the change will entail. 

The National Environmental Policy Act (NEPA) – the guidelines in question – dates back more than 50 years. To an increasing extent, in recent years, communities, landowners and environmental activists used it to bog down the permitting of pipelines by pointing to standards within the Act that required what was broadly termed “environmental accountability.” 

In other words, federal agencies had to consider the potentially damaging effect of pipelines projects, prior to approving them, and see to it that there would be proper remediations in place. Not only that but the approval process also required that pipeline companies and regulators take into consideration the potential indirect ill effects of projects and environmental problems that might occur during the coming years.  

NEPA policy, well-intended or not, was at the heart of the cancellation of several large projects in recent years, in some cases doing so by causing the final permitting process to drag on for so long that the pipeline itself was no longer financially viable. The most famous project shot down largely due to NEPA criteria was the Keystone XL.  

NEPA guidelines had remained more or less in their original form from 1969 until 2020 when the Trump administration changed the rule to restrict the time allowed for public comments and environmental review. Possibly more significantly, the changes allowed federal officials to ignore a project’s aggregate effects on communities and the environment, such as climate change. 

While the Trump-era changes were widely hailed by midstream and other energy companies at the time for eliminating some of the red tape and other delays to the process, the less-restrictive guidelines also prompted some permitting problems of their own.  

Increasingly, anti-pipeline forces were able to mount court challenges that claimed projects had not undergone sufficient analysis from the government or the projects’ owners prior to being permitted. This argument has become increasing successful over the past two years and had much to do with the additional delays experienced by the Mountain Valley pipeline. 

So, while many business groups and pro-pipeline lawmakers have criticized the change back to the pre-2020 NEPA criteria, and not without reason, others have been advancing a counterargument in which they see a potential silver lining. 

If the federal review process going forward is more rigorous, results should provide stronger evidence of the project’s safety and benefits (or lack of potential harm) when challenged in court. 

Less sure about this, though, is Arkansas Rep. Bruce Westerman, ranking Republican on the House Natural Resources Committee, who said the changes “weaponize NEPA” by making it even more difficult to navigate all the red tape. 

“At a time when we should be coalescing around bipartisan ways to lower gas prices, tame skyrocketing inflation and fix the supply chain crisis, President Biden is unfortunately reinstating archaic NEPA regulations that will only result in delays and red tape and feed activist litigation,” Westerman said. 

The new rule from the Biden administration went into effect shortly after the Supreme Court had, in an unrelated ruling, reinstated a Trump-era policy, lessening the extent to which Native American tribes and individual states can block pipelines, based on potential for the contamination of waterways.  

In a 5–4 decision, the high court had overturned a lower court’s decision, but the effect of the decision does not impede the “broader” rewriting of Environmental Protection Agency rules.  

The White House said the new language will not be finalized until Spring 2023. The Trump-era rule will remain in effect until that time. 

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