In late July, the White House Council on Environmental Quality (CEQ) dropped a regulatory bomb that threatens to blow up infrastructure permitting reform. The proposal, known as “Phase 2” revisions to National Environmental Policy Act (NEPA) regulations, represents a dramatic attempt to undermine bipartisan Congressional efforts to streamline energy and infrastructure project reviews. If finalized, this rule will lead to longer approval times, increased litigation risk, and mounting uncertainty surrounding the steps to obtaining a permit, all while throwing in doubt the viability of America’s ongoing clean energy transition.
For over 50 years, NEPA has required federal agencies to analyze potential environmental impacts of major projects before making permitting decisions. However, the statute only mandates a process, not specific environmental outcomes. As the Supreme Court has repeatedly affirmed, NEPA is a procedural statute that does not elevate environmental concerns over other policy objectives.
Yet CEQ’s proposal seems to interpret NEPA otherwise, imposing ambiguous new requirements related to climate change, environmental justice, and especially mitigation. The Phase 2 proposal likewise introduces many new vague terms and aspirational goals that lack clear definitions or standards. What constitutes “meaningful” public engagement? When are “global” climate effects relevant to a pipeline or lease decision? How does an agency apply the proper “environmental justice” lens?
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