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White House updates rules for infrastructure permitting to promote speed and protect environment
The Biden-Harris Administration has announced that the White House Council on Environmental Quality (CEQ) is finalizing the Bipartisan Permitting Reform Implementation Rule. This aims to simplify and modernize the federal environmental review process to speed up permitting in several key sectors.
The Administration is walking a tightrope with the new permitting rules – both encouraging faster build-out of key infrastructure projects, and maintaining robust environmental protections.
The updated rules aim to reduce bottlenecks for projects in seven sectors: transmission; renewable energy on federal lands; offshore wind; high-speed internet; semiconductor fabrication; critical mineral mining; and transportation.
A White House press release outlined several ways in which the Bipartisan Permitting Reform Implementation Rule will modernize federal environmental reviews. The new efficiencies were negotiated and secured in the Fiscal Responsibility Act of 2023.
To accelerate critical infrastructure, the rule sets clear deadlines and page limits for environmental reviews. Additionally, it gives agencies new and more flexible ways to implement categorical exclusions to expedite projects with that have no significant adverse effects. When an agency or project sponsor has opted to mitigate the effects of a project, the rules allow for lower levels of environmental review.
Agencies can now use programmatic environmental reviews to assess the impact of particular categories of projects. The rule also encourages the use of shared environmental analysis to avoid duplicated effort.
In an effort to promote long-term sustainability, the new rules instruct agencies to consider climate change effects when they conduct environmental reviews and identify alternatives to mitigate climate impacts.
The rule also instructs agencies to engage in early and meaningful engagement with impacted communities to cultivate community buy-in, avoid conflict, and improve project design. Agencies are also directed to consider environmental justice and follow best practices for inter-agency collaboration and coordination.
Permitting for communications infrastructure projects should be faster and simpler under new plans. In March, the Advisory Council on Historic Preservation (ACHP) provided a new way for federal agencies to comply with the National Historic Preservation Act. Previously, the ACHP had provided a faster review process for projects on federal lands, but this update extended the benefits to projects on non-federal lands. This action is designed to shorten historic preservation reviews from over a year, to under three months.
In April, the National Telecommunications and Infrastructure Administration (NTIA) adopted 36 new categorical exclusions. These categorical exclusions are categories of actions that a federal agency has concluded usually have little impact on the human environment and are, therefore, exempt from some forms of environmental assessment.
In addition to the categorical exclusions, the NTIA developed and released a permitting and environmental mapping tool. The application will help federal broadband recipients and subgrantees identify and understand permit requirements and avoid environmental impacts.
Although the newly-established rules are intended to streamline permitting and environmental review processes, some critics have argued they will have the opposite effect.
Several Senators and Representatives have argued that the rules will lead to increased litigation and costly delays. Business groups have argued that the rule gives preferential treatment to project favored by the Biden Administration and makes agency analysis more complex.
The CEQ has taken a number of steps to undo changes the Trump Administration made to the country’s permitting process. However, there is opposition to the new plan from both sides of the aisle. Senator Joe Manchin (D-WV) has threatened to lead a vote to undo the new rules, but he and potential supporters are unlikely to succeed as Biden would almost certainly veto an attempt to roll back the regulation.
However, given the seeds of dissent already visible, the future of the new regulation may not be set in stone. If Donald Trump is re-elected as President in November, these permitting regulations may be destroyed, along with most of President Biden’s environmental legacy.
