Learn more about our Constitutional Litigation Partnership at TakeOnBigTech.com

Blog: National Environmental Protection Act Reform Comments

August 3, 2021

The America First Policy Institute and The Texas Public Policy Foundation’s Life:Powered project submitted joint comments in opposition to the U.S. Council on Environmental Quality’s (CEQ) proposed rule to thwart critical National Environmental Protection Act (NEPA) reforms. The CEQ’s interim final rule issued without prior notice or public comment delays by two years a deadline for a key step in implementing a permitting reform rule issued last year that made foundational progress for the future of American infrastructure.

Among other things, the reform rule had revised CEQ’s NEPA implementing regulations to establish presumptive time and page limits to the review process, enhance interagency cooperation and avoid unneeded duplication of effort, and set a two-year goal for completion of environmental review. Importantly, the push for timely, coordinated, and transparent permitting did not seek to remove necessary environmental checks on infrastructure development. On the contrary, a more efficient process ensures that environmental checks are communicated clearly and quickly. Timely decisions mean that resources can be effectively allocated toward infrastructure projects that are beneficial and environmentally viable—and away from those that are not. Put simply, clear, timely decisions allow projects that are worthy to benefit the American people and communities, large and small, more quickly.

The original deadline for agency coordination in implementing this reform was adopted through full notice-and-comment rulemaking procedures, with ample opportunity for public input and policy deliberation. The Biden Administration’s delay rule kicks this deadline out another two years, without notice, comment, nor valid reason given. Nevertheless, the objective is clear, the delay hopes to give the new administration time to figure out how to prevent this much needed reform from being implemented on behalf of the American people. The Biden Administration’s delay rule runs contrary to the rule of law and to the interest of the American people. It will result in stranded capital, crumbling infrastructure, more traffic gridlock, fewer jobs, increased costs for small businesses, and a stunted economy.

The critical need for the 2020 NEPA reform rule has long been apparent. In 2009, then-Vice President Joe Biden visited a bridge in Middleton, Pennsylvania for a groundbreaking ceremony to promote federal funding from the American Recovery and Reinvestment Act. He discovered that the bridge was not “shovel ready” due to issues with the permits. He joked to the media at the time that he guessed there was no such thing as a shovel-ready project. As Biden oversaw the implementation of the Recovery Act, he discovered firsthand time and again that permitting issues were delaying infrastructure projects and therefore jobs across the nation. These delays were largely driven by the bloated and lengthy federal permitting process; yet the Obama-Biden Administration did not act for eight years, allowing the pile-up of worthy infrastructure projects to worsen.

Biden’s dismissal of “shovel ready” projects as a myth more than a decade ago highlighted a long-term problem: the permitting process has become too lengthy and unpredictable, stranding capital, and leaving infrastructure in disrepair. From a road, to housing, to energy-transmission lines, excessive, complex, and burdensome regulations make it exceedingly difficult to build anything. Regulatory barriers under NEPA, through which every major project must be assessed, are major factors in these federal permitting challenges.

In fact, the CEQ found that the average environmental impact statement required under NEPA for a single project was over 600 pages in length and took agencies 4.5 years to complete. Many projects took much longer than that—with the average time for highways being more than 7 years. Importantly, these delays flowed from an excessive and poorly coordinated bureaucracy, not a necessary component of determining a project’s environmental viability. Further, projects are often tied up in court for additional years, with challenges exacerbated by unclear regulations.

The future of American infrastructure depends on improving the permitting process. The Trump Administration took a major step in the right direction, becoming the first administration to overhaul the NEPA regulations in the forty years since the law’s enactment. However, the Biden Administration has consistently signaled its opposition to this critical reform. A “White House Fact Sheet” issued on the Administration’s first day in office flagged NEPA Reform for review, and the Biden Administration’s pick to lead Council on Environmental Quality, Brenda Mallory, refused to endorse the need for more efficient timelines during her confirmation hearing. Unfortunately, there are many—including in the Biden Administration—who oppose development of any kind and seek to perpetuate complex, burdensome regulations as a way to implement “denial by delay” of any project, no matter its compliance with established environmental standards. The Biden Administration’s own White House Environmental Justice Advisory Council expressed opposition to infrastructure activity as basic as “road improvements” even as they support “electric charging stations” that will presumably power electric vehicles to run on those same roads.

The push to reverse course on permitting reform while claiming infrastructure development as a key part of its agenda demonstrates the extent of this internal contradiction within the Biden Administration and comes at the expense of the American people. It should come as no surprise that the Biden Administration has made much more impact in revoking permits for energy projects—from the Keystone pipeline to drilling in the Arctic National Wildlife Reserve – than in replacing lost jobs and energy security with promised alternatives.

Critically, this latest effort to bypass the traditional notice-and-comment period for a rulemaking to delay necessary streamlining of the permitting process occurs just as the Senate considers a bipartisan infrastructure bill. Much of the discussion to date has centered on the definition of infrastructure, as the Biden Administration seeks to include everything from in-home care to universal pre-kindergarten classes. Despite the Administration’s broad definition, President Biden has often focused on traditional infrastructure in calls for unified support, saying in Louisiana, “When it comes to bridges and roads and the like, I’ve never seen a Republican or Democrat road. I just see roads.” Yet, efforts to reverse critical progress on permitting reform like the delay rule mean that Americans are not likely to “see roads” materialize any time soon, if at all, from the incredible volume of proposed spending of their hard-earned tax dollars. The Biden Administration’s promise of a commitment to infrastructure flies in the face of their actions on this rule which will slow down all federal infrastructure projects, thwarting Congress and harming the American people. The Biden Administration should build, not backtrack, on permitting reform.