Final Rule on National Environmental Policy Act an Important Step to Get America Back to Work

Along with its regulatory reforms, the Trump administration has also sought to unleash the American economy by streamlining the federal permitting process for major infrastructure projects like roads and pipelines. A key component of this effort was finalized today in the form of a rule making key changes and clarifications to the National Environmental Policy Act (NEPA).

Enacted in 1970 and intended to be a straightforward assessment of the environmental impacts of proposed projects requiring federal action, NEPA has metastasized into a weapon used by environmental obstructionists to delay unwanted roads, bridges, electric transmission lines, pipelines, ports, and other infrastructure projects. As a result, the Environmental Impact Statements required for major projects take four and half years on average and nearly every final decision is challenged in federal court, leading to further delays. In some cases, the delays are so great that project developers are forced to give up entirely.

Over the last decade, NEPA has also become a climate change policy tool used to slow and sometimes stop projects related to the extraction, transport, and use of coal, oil, and natural gas. Perhaps the worst example is the Keystone XL oil pipeline, which was under NEPA review for nearly the entirety of the Obama administration before being rejected by it. But there are many others.

The final rule includes reforms applicable to all NEPA reviews, such as page and time limits and a more streamlined process for interagency coordination that helps advance the administration’s one federal decision goals. In addition, there are provisions that are particularly important for fossil fuel-related project reviews. These provisions will work in concert those in a 2019 draft guidance document from the Council on Environmental Quality on the treatment of greenhouse gas emissions in NEPA proceedings, and could result in much clearer boundaries around such considerations. A CEI-led coalition comment on the proposed NEPA rule that explained the greenhouse gas implications can be found here.

Among the key features of the final rule especially relevant to greenhouse gas emissions, it sets out explicitly that a cumulative effects analysis is not required, that the environmental impacts under consideration must be reasonably foreseeable and have a close causal relationship with the project itself, and that the required consideration of alternatives need only include technically and economically feasible ones.

The extent to which this final rule actually reduces red tape and gets the proverbial shovels in the ground sooner than otherwise depends on the application of its provisions by federal agencies as well as their future interpretation in the courts. The latter is of concern, given that recent decisions blocking the Keystone XL and Dakota Access oil pipelines and other projects show that anti-project litigants and sympathetic federal judges are still very much a problem. Nonetheless, the final rule holds the potential to shave years off the approval times for projects capable of expanding energy supplies and employing thousands of people.

There is a backlog of energy and transportation infrastructure projects in the long NEPA queue. These job-creating projects, if expeditiously approved, could help put more people back to work as the economy recovers from the coronavirus pandemic, and the completed projects would strengthen American energy dominance. This is why the Trump administration issued an executive order asking agencies to select proposed projects for expedited NEPA review. This final rule could help many of the rest get a more timely decision without needless climate-related complications.